84 N.Y.S. 440 | N.Y. App. Div. | 1903
This action is brought by an attorney at law to recover for legal services alleged to have been rendered to the defendants The complaint avers that the plaintiff rendered services for the defendant between the 12th and 30th days of January, 1900, and that the reasonable value of such services was the sum of $2,500. • The defendant by his answer puts'in issue the allegations of the complaint and then sets up two separate defenses: (1) That he paid $250 to the plaintiff in full for the services, and (2) that he paid $250 in full accord and satisfaction and discharge of the plaintiff’s claim.
,The defendant was the treasurer of the Peerless Rubber Company, and through one George Irwin and the firm of Price, McCormick & Co. defendant’s company was sold to the Rubber Goods Manufacturing Company in January, 1899. As a part of this transaction Irwin gave his note to the defendant for $125,000, payable January 26, 1900, secured by 5,000 shares of the stock of the company. The note provided that if it was paid by the sale of the stock, Price, McCormick & Co. should have the surplus, which agreement was subsequently released by that company. At the same time that Irwin gave the note he gave the defendant a contract which recited the sale of the Peerless Rubber Company to Charles R. Flint, and further recited a contract between Irwin and Price, McCormick & Co. to divide the profits or losses of the sale, one-fourth to Irwin and three-fourths to Price, McCormick & Co.,, and the contract then provided that the defendant should have one-half of Irwin’s share.
“Jas. F. Mack :
“ Dear Sir.— Enclosed please find check for $250.00. I think this pays you well for what you have done for me. You informed my wife and I that you would take any amount I offered and insisted*362 on me fixing the price. Ton also said last evening you would take as low a sum as $10.00, or anything I wanted to give. Please sepd receipt.
“ Yours truly,
“O. C. MILLER.’'
On the same day defendant left the city and went to Pittsburg, where he remained for one week. As soon as plaintiff received the letter and check he wrote defendant the following letter:
“ Brooklyn, E". Y., Feb. 2d., 1900.
“ Dear Sir.—I received your letter of even date enclosing check for two hundred and fifty dollars which I would be glad to apply on account of my bill for services rendered, as set forth in my letter of January 31st, 1900. Under no circumstances could I accept the check for the above amount in full settlement of my bill.
“ Yours very truly,
“JAMES F. MACK.
“ To Charles C. Miller.”
The plaintiff then waited: two days, and not hearing from the' defendant, cashed the check.
The nature, extent and value of the services rendered by the plaintiff to the defendant were the subject of considerable and conflicting testimony upon both sides. The testimony offered by the plaintiff tended tó show that the services were in fact of much greater value than the award of. $.700, which the jury gave, one lawyer placing the value of the services as high as $16,000; while the defendant’s witnesses placed the value as low as $100. The employment being admitted and some services having been rendered, the value of such services became exclusively a question for the jury, and we think their verdict cannot be disturbed as being against the weight of evidence. Upon, this branch 6f the case, therefore, we find no basis for legal interference.
It is claimed by the defendant that the acceptance of the check and the appropriation, of its proceeds by the plaintiff constituted an accord and satisfaction, and that, therefore, the complaint should have been dismissed. The letter of the defendant inclosing the check does not state that it is in full satisfaction of the claim. Its
We have, therefore, a clear expression by the court of last resort that the limit of the doctrine of accord and satisfaction has been reached and is not further to be extended in favor of defendants relying thereon. In the present case is found the first supposition which the court announced in Fuller v. Kemp (supra), viz., that the first letter invited a reply and the check was used. Had the
The charge of the court to the jury fairly covered the case in all its aspects. There was nothing therein to which the defendant was entitled which was not fairly charged. We have examined the assignment of errors to the charge, made by the defendant, and the several questions raised thereunder by him, and have reached the conclusion that no error prejudicial to the defendant’s case was made by the court.
It follows that the judgment and order should be affirmed, with costs.
Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.
Judgment and order affirmed, with costs.