158 N.Y.S. 195 | N.Y. App. Div. | 1916
This action was brought to recover for services alleged to have been rendered by the plaintiffs at the request of the defendants. The complaint alleges that the plaintiffs were partners engaged in the practice of law and that the defendants were partners conducting a large department store business in Pittsburg, Penn., under the firm name of Kaufmann Brothers; that between the latter part of June, 1912, and the 11th day of October, 1912, the plaintiffs at the request of the defendants performed certain services for the defendants which the defendants accepted, adopted and ratified. The complaint goes on to specify the kind of services rendered, briefly as follows: That the defendants wanted to dispose of their business to the public by organizing a corporation with preferred and common stock,
Under an order of the court the plaintiffs furnished the defendants with a bill of particulars and thereafter a further bill of particulars in which the plaintiffs set forth in minute detail the particulars of their demand, as well as a good deal of the evidence upon which they rely to prove this case.
■ In support of their claim the plaintiffs called as their first witness Mr. Bernheimer, one of the plaintiffs. He was ques
The plaintiffs had sought to show by the testimony which was struck out, and by the proposed testimony which was rejected by the court, a contract for services between the plaintiffs and the defendants, made through defendants’ alleged agent, Theodore Kaufmann, and an adoption and ratification of that contract by defendants. The court allowed the witness to testify to conversations between Bernheimer and Theodore Kaufmann upon the promise of the plaintiffs' to show subsequently the agency of Theodore Kaufmann and the ratification and adoption of the contract by defendants. It appears from this testimony if true that there was an agreement to render services substantially the same as those alleged in the complaint, that is, the plaintiffs were to procure bankers of high standing and financial ability to finance the enterprise of the defendants upon terms acceptable to the defendants, and bring the negotiations to a point where the bankers and defendants should come to an agreement upon the terms and conditions satisfactory to both parties. The witness testified
We fail to see any variance between the agreement as testified to and the cause of action alleged in the complaint. It is simply a case where the plaintiffs having rendered services under a special contract sue upon a quantum meruit, and giye in evidence the special contract for the purpose of fixing the damages, i. e., the value of the services —a course quite usual and well supported by authority. (Farron v. Sherwood, 17 N. Y. 227; Boyd v. Vale, 84 App. Div. 414; Rubin v. Cohen, 129 id. 395.)
We think the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Clarke, P. J., Laughlin, Scott and Page, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.