60 N.Y.S. 625 | N.Y. App. Div. | 1899
The plaintiff sues, as assignee of the claim of the law firm of Higley & Ferguson, of which he had been a member, to recover on four separate causes of action for legal services rendered. It was consented on the trial that judgment should be entered in his favor for $150 on the first and third causes of action, and this appeal, therefore, concerns only the second and fourth. The second cause of action charges the defendant with $100 for services at his request in defending the “ Arkansas Gulf Railroad Company " in suits brought against it, which was due and payable January 1, 1893, when payment was demanded and promised. The fourth cause of action shows that services were rendered at defendant’s request, in the matter of the Arkansas Land ana Improvement Company, amounting to $536.50, due from June 17, 1893, on which defendant paid $368.35. No question is raised as to the value of the services turning upon whether the corporations or defendant were liable for the services rendered. The plaintiff testified that the firm of Higley & Ferguson were retained by the defendant in the matters in question; that “he called at our office and * * * asked us to take charge of those two suits, and at his request the work was done." That the bills were sent to the defendant and he promised to pay the same, and no question was raised till this action was commenced nearly six years after the cause -of action accrued. When asked as to the companies represented in the suits plaintiff testified: “ Mr. Bergholz * * * was the man that was interested in the corporation, and it was for his interest that the matter was done * * * I don’t think that anything was paid by that corporation during our partnership." The weight of this testimony is affected by the fact that personally the plaintiff had nothing to do with making the arrangement with defendant or in performing the services. It appears that previous to the law partnership Mr. Ferguson had some work, both for Mr. Bergholz and for the companies, in which he was interested; and, also, that in a book kept by the law firm there were entries of the companies in account with the firm. The services were principally rendered by Mr. Ferguson himself. There appears a bill, dated March 17, 1893, against “ the bondholders of the Kentucky and Arkansas Land and Industrial Co.," to J. M. Ferghson for expenses. Plaintiff stated: “I took it for granted that, as Mr. Bergholz was the only one that came to the office and talked these matters and presented the ca'se and wanted things done, that he was the only responsible one; finally responsible." „ By the assignment from Ferguson to plaintiff, William Bergholz is mentioned as debtor, not as president, and the itemized account, including all the matters brought out in the four causes of action, is headed “ William R. Bergholz to Higley and Ferguson, Dr. Summary of bills rendered." On behalf of the defendant, J. M. Ferguson, a member of the previous law firm, who had assigned his interest in the claims to the plantiff, testified that he had incorporated companies for the defendant, and they were his clients previous to the law partnership, and that they had retained him and paid him, and Mr. Bergholz did not agree to be responsible personally; that, as tothe fourth cause of action, he understood that his assignment was of a claim against a company* but admitted that the company mentioned, in the complaint had gone out of existence. The firm’s book was presented to the witness and he acknowledged that there were entries in the name of Mr. Bergbolzwhich concerned the matter in which the company was involved. Witness further stated that he was Mr. Bergholz's son-in-law, and that the reason for the assignment to the plaintiff was his indebtedness to him. The defendant stated that he had retained íur. Ferguson previous to the beginning of the law partnership, and that the companies in which he was interested also retained and paid him; that, with respect to the matters in suit, he went to fill’. Ferguson to attend to them and had no conversation whatever with the plaintiff; that he took great care to have it understood that the various companies were to pay their bilis. The burden of proof was on t he plaintiff to show that the services were rendered to the defendant, and that the defendant promised to pay for the services individually. The jury believed that such promise was made, but the plaintiff “ took it for granted," and Mr. Ferguson, who had charge of the work, stated that it was not rendered for the defendant individually. It appears that there had been services previously rendered by Mr. Ferguson for the defendant and for his companies, and the natural inference is that he so understood the new work. He did, however, enter items against defendant individually and assigned his interests in the claims as if they were only against defendant. Concluding as we may that Ferguson is an interested witness, hostile to plaintiff and testifying, in conflict with his assignment and entries in the books, 3et there is no sufficient evidence to sustain the burden placed on plaintiff of proving that defendant agreed personally to be responsible for the debts of the companies with which he was connected. Mr. Higley himself had little or nothing to do with defendant, who was a client of Ferguson’s and ho does not claim that, before tne services were rendered, he made any agreement, or was present when such was made, by which defendant agreed to pay for services rendered to the companies. After the rendition of the services he had several talks with defendant in which the latter agreed to pay the claims. If not primarily liable he could not be bound by an oral promise made after the debt was incurred. The question, therefore, returns to the one discussed as to whether there was sufficient evidence to go to the jury on the proposition which plaintiff had to sustain, viz., that defendant, desirous of having services rendered to the company, personally agreed to- pay for same. We think not, for though plaintiff was led, as he says, by Ferguson’s statements to believe such to be the case, such statements, representations or entries from books made by Ferguson were not binding on defendant. We think, thereforé, that the learned judge should have dismissed the second and fourth causes of action and directed a verdict on the first and third causes of action. If the plaintiff will consent to reduce the judgment to the amount of $150, with interest thereon, together with the costs in the court below, including an allowance, then the.judgment may be modified accordingly, without costs to either party on this appeal. Upon a refusal, however, to consent to a reduction, the judgment must be reversed and a new trial ordered, with costs to the appellant to
