McDonald v. Vito

103 N.Y.S. 508 | N.Y. App. Div. | 1907

Kruse, J.:

While the evidence was undisputed that the plaintiff rendered legal services for the defendants at their request, for which the plaintiff, was entitled to recover what they were reasonably worth, if the testimony of the plaintiff is to be taken as true, yet even in that view, the value of the services was a question of fact for the jury; but beyond that the testimony on behalf of the defendants tended to prove that the services were rendered in certain actions under a special contract for which the plaintiff was to receive twenty-five per cent of the recovery. If this agreement was made, as claimed on behalf of the defendants, then the plaintiff was not entitled to recover what the services were reasonably worth, but was necessarily limited by the terms of his contract to twenty-five per cent of the recovery. Itris true that the defendants refused to attend the trial of the actions, but that was after the plaintiff had refused to proceed under the contract as claimed by the defendants, and they had refused to proceed with the actions because of the plaintiff’s repudiation of the contract as claimed by them. If the defendants were right in their contention, they were under no obligation to continue the services of the plaintiff, and had incurred no liability for what he had done.

We are clearly of the •opinion that questions of fact were presented by the evidence which required the case to he submitted to the jury, and it was error to direct a verdict for the plaintiff.

The judgment and order should be reversed and a new trial granted, with costs to the appellants to abide the event.

All concurred,

. Judgment and order reversed and new trial ordered, with costs to the appellants to abide the event.