17 N.Y.S. 591 | New York Court of Common Pleas | 1892
Plaintiff sued to recover the fair and reasonable value of services, as an expert accountant, alleged to have been rendered and performed by him, at the request of William H. Leonard, in and about the preparation of the accounts of said Leonard, George W. Parsons, and Mrs. Almira Reed, as joint executors of and trustees under the last will and testament of Ebenezer Reed, deceased. The answer denied the employment of the plaintiff by the defendant, the performance of the services, and the value thereof; and the trial of the issues thus created resulted in a verdict for the
Upon the close of the introduction of plaintiff’s direct evidence, defendant’s counsel moved to dismiss the complaint upon the grounds that plaintiff had failed to establish his employment by the defendant individually; that there was a variance between the pleadings and the proof, in that the latter established an employment by the defendant jointly with Parsons and Mrs. Reed; and that defendant and Mrs. Reed, as survivors of the three joint contractors, should have been joined as defendants in this action. The motion was denied, and defendant’s counsel duly excepted. There was no error in this ruling. At common law the non-joinder as party defendant of one jointly liable did not constitute a variance, and was ground for a plea in abatement only; the defect being waived if the defendant proceeded to trial on the merits, (Mountstephen v. Brooke, 1 Barn. & Ald. 224; Le Page v. McCrea, 1 Wend. 164;) and pursuant to the provisions of Code Civil Proc. §§ 488, 498, 499, the non-joinder as party defendant of one jointly liable is unavailable for any purpose unless the objection is taken by answer or demurrer. Assuming, therefore, that the evidence conclusively establishes a joint employment, as contended by defendant’s counsel, plaintiff was nevertheless entitled to recover. Whether joint or several, the defendant’s liability for plaintiff’s entire demand was shown, and the payment of a judgment recovered against him alone could have had no other effect than that which would have resulted from payment without the judgment. Defendant still had his claim for contribution against his co-contractors, (2 Whart. Cont. § 835; Aspinwall v. Sacchi, 57 N. Y. 331; Booth v. Bank, 74 N. Y. 228; Harbeck v. Vanderbilt, 20 N. Y. 395;) and the only advantage which might have have inured to him from their joinder as parties defendant in this action would have been that a judgment therein against the defendants jointly would have concluded the parties in a subsequent action for contribution.
In Patchin v. Peck, 38 N. Y. 39, plaintiff sued to recover upon a demand alleged to be due him individually. The evidence showed it to be owing to a firm of which he was a member, and the defect of parties plaintiff was not objected to by answer or demurrer. The court held the failure to raise the objection by either means rendered proof of the firm ownership of the demands insufficient to bar recovery, and for that reason inadmissible. The principle upon which the decision proceeded is stated as follows: “It is suggested by counsel for the defendant that the rule ought not to be applied in this case, for the reason that the defendant could not determine from the complaint that this demand would be claimed by the plaintiff in his action. If this be so, the remedy of the defendant was either to apply to have the complaint made more specific, or to obtain a bill of particulars of the plaintiff’s demand. The question remains, whether the evidence was admissible to restrict the recovery to the amount of plaintiff’s interest in the demand. The interest of plaintiff was that of a partner, and extended to the entire demand. Payment of the whole to him would have discharged the defendant as to both partners. A recovery of the whole in this action by the plaintiff will have the like effect. Under such a state of facts, it was held by this court that when the
Another ground urged by defendant’s counsel in support of the motion for the dismissal of the complaint was that the evidence established plaintiff’s employment by Leonard, Parsons, and Mrs. Reed, not as individuals, but as executors, etc., of Ebenezer Reed. Were the evidence susceptible of no other construction or inference than that contended for on defendant’s behalf, there would be no difficulty in the way of reaching the conclusion that the cause of action alleged in the complaint remained unproved, and that the motion to dismiss should have been granted. As it is, however, there was evidence from plaintiff’s testimony that the services for which he sought to recover were performed by him upon the direct request of the defendant; and from that fact the law will imply a promise to pay what they were fairly and reasonably worth. That the services did not inure to the personal advantage of the defendant, but were required in matters pertaining to the estate of which he was an executor or trustee, did not absolve him from personal liability therefor, in the absence of an agreement to that effect. Ferrin v. Myrick, 40 N. Y. 315; Mygatt v. Wilcox, 45 N. Y. 306; Austin v. Munro, 47 N. Y. 360, 367; New v. Nicoll, 73 N. Y. 131; Seaman v. Whitehead, 78 N. Y. 306, 309. There was no evidence of such an express agreement; and whether or not the contracting parties intended that plaintiff should be confined to the estate for compensation was at most a matter of inference from the circumstances surrounding the request for, and the performance of, the services. These circumstances may be equally consistent with an inference either way, but it was for the jury to draw it, and not for the court. Bank v. Dana, 79 N. Y. 108, 112; Smith v. Coe, 55 N. Y. 678.
Other exceptions to the rulings upon the trial taken by the defendant prove to be equally without sufficient force to warrant the reversal of the judgment. Plaintiff’s testimony concerning an interview with Mrs. Reed, which was objected to by defendant, related wholly to a demand by him for payment of the amount claimed for compensation, to which he had previously testified without objection. The letters from Leonard to Parsons, which were admitted against defendant’s objection, referred to the preparation of the accounts, for which plaintiff claimed to have been employed. He testified that his instructions concerning the manner of their preparation were received partly from the defendant, personally, and partly from Parsons, his co-executor; and evidence tending to show that Parsons’ instructions were authorized by the defendant was competent. For that purpose the letters containing such authority were both relevant and material, and therefore admissible.
Defendant was asked on his direct examination: “Mr. Douglass has testified that in July, 1885, you requested him to write up the accounts of this estate for you. Is that true?” and under objection by plaintiff’s counsel this question was excluded as leading. We do not concur in the ruling of the trial justice in this respect, since the question does not apparently involve any suggestion of either an affirmative or negative answer; but the subsequent examination at length of the witness concerning the subject-matter of the question effectually waived the error of its exclusion. Neil v. Thorn, 88 N. Y. 277; Crosby v. Day, 81 N. Y. 242.
Defendant’s counsel requested the court to charge “that a trustee has no power to employ an accountant at the expense of the estate for which he acts, and that the defendant in this case, if held liable for the claim of Mr. Douglass, has no recourse, as a matter of law, against the estate of Dr. Reed.” This was charged, with the following qualification: “That a trustee cannot bind the fund of which he is trustee by the employment of a third person. If he employs a person, he is individually liable for such employment. But, of course, when he presents his accounts for settlement, either to the court or to the surrogate, he has a right to offer such item as a proper disbursement; and it is for the court to say whether or not it is a proper disbursement. ” To the refusal to charge as requested, and the charge as made, defendant’s counsel excepted. In view of the fact, however, that the claim in suit was founded upon the personal contract of the defendant, and no recovery was sought or could have been had against him as executor, or against the estate of which he was executor or trustee, the charge requested and as made does not appear relevant, since the defendant’s liability to pay-for services rendered at his request is not in any degree impaired because he has no means of recourse for the expense incurred. As an abstract proposition of law the charge as made was correct, (2 Redf. Suit. p. 456,and cases there cited;) and its irrelevancy cannot aid the party at whose request it was made.
The remaining grounds urged for affirmance of the order of the general term of the court below, reversing the judgment, namely, that the verdict is contrary to the evidence, that the amount thereof is excessive, and that there was no adequate or satisfactory proof as to the time spent by plaintiff in the performance of the services for which be sought to recover, authorizes us to review the evidence only to the extent of ascertaining whether there was any evidence whatever to support a finding in plaintiff’s favor; and, upon examination, we must conclude that there was. Plaintiff testified that the services were performed and the accounts prepared at the request of, and at the direction of, the defendant, and pursuant to his instructions. These facts implied a promise by defendant to pay the reasonable value of the services. The accounts prepared by plaintiff were given in evidence, and presented to the court and jury for inspection; and whether or not they were as defendant directed them to be, was a fact capable of being ascertained therefrom. Plaintiff and the witness Bergtheil, both expert accountants, testified that the usual compensation for services of expert accountants is from $20 to $25 for ea.ch day, consisting of from 6 to 8 hours’ work. Plaintiff claimed to have spent 75 days in the preparation of the accounts. His testimony in this respect, it is true, was vague, but it was aided by the presence of the accounts; and it was competent for the jury to say from their inspection whether 75 days of from 6 to 8 hours each was reasonably required in their preparation, and the preliminary examination of books, memoranda, and other material, and attendance at interviews and consultations requested by the defendant, or otherwise necessary.
The foregoing comprise all of the exceptions urged by the defendant to sustain the order appealed from, and, for the reasons stated, are insufficient.