Graham v. Chrystal

2 Keyes 21 | NY | 1865

Wright, J.

The action was by the executors of David Graham, • an attorney and counselor at law, to recover for professional services rendered for the defendant by their testator at various times, between October, 1845, and June, 1850, in and about defending him in two criminal prosecutions. The payment of $250 to the.testator in his life-time, on account of such services, was admitted in the complaint, and judgment demanded for $850, with interest from the 1st June, 1850. The referee found that the services were rendered, and were reasonably worth the sum of $1,250, from which the sum of $250 should be deducted as having been paid on account. His legal conclusions were that the plaintiffs were entitled to recover the sum of $1,000 and interest, but inasmuch as they had by their summons and complaint only demanded judgment for $850 and interest from 1st June, 1850, they should be limited in their recovery to the sum so demanded, and were, therefore, only entitled to recover judgment for $850, and the interest on that sum from 1st June, 1850, being $785.88, amounting in the whole to $1,685.88. The defendant excepted generally, “to each and every conclusion of law contained in the referee’s report.”

The allowance of interest on the amount of the'recovery from 1st June, 1850, is now insisted on as a ground of error. Usually, interest is not recoverable when the claim is unliquidated and no bill furnished or demand made before suit brought. In this case, however, my brethren are of the opinion that the allowance was right. About the 1st June, 1850, the defendant left the State unknown to the plaintiffs’ testator, and continued absent in some of the Southern States or California until 1860. He left without inquiry as to the amount of the claim against him. Ho bill could be furnished or demand of payment made in his absence, for the testator and his representatives were ignorant ,of his location, he having no permanent one. In 1860, when he returned to the State, and the fact came to the knowledge of the plaintiffs that he was again in the city of Hew York, they forthwith demanded payment of the claim, which was refused on the ground that he had paid the testator in full for the services. The tendency of recent decisions is to relax the rigid .rules that once prevailed in respect to awarding interest. Had a demand of payment been made, in this case, upon the full rendition of the services, the right to interest would have been in no way doubtful; but the defendant fled the State about that time, wandering about in other States without any fixed abode, rendering a demand impossible. Under these circumstances, the allowance of interest on the claim is but just. But, apart from this, in my opinion, the defendant is not in a position to avail himself of the error, if it be an error to have allowed interest, for the want of a proper exception. The exceptions taken, it will be observed, are in the most general form. It is conceded that interest was allowable from the time. of the demand, which preceded the suit, in 1860. The exception should have been made specific if the defendant intended to object to the time for which it was allowed. It should have stated from what time interest should have been computed, so as to have given the plaintiffs an opportunity of remitting the excess, and thus avoid the consequence of the error. But nothing of this kind was done,, the defendant contenting himself with a general exception to the referee’s conclusions of law that the plaintiffs were entitled to recover a gross sum, composed of principal and interest, from a stated period.

The other exceptions relate to the admission or rejection of evidence. 1 have examined them carefully, and have reached the conclusion that none are tenable.

The judgment should be affirmed.

All concur.

Affirmed.