Mitchell v. Rouse

46 N.Y.S. 523 | N.Y. App. Div. | 1897

Merwin, J.:

The recovery in this case is for personal services performed by the plaintiff at the request, as he claims, of the defendant in assisting her to procure a settlement of a claim she had against a railroad company for damages for the death of her husband, and also in assisting her in her appointment as administratrix of her husband’s estate and in investing the moneys received from the railroad company..

At the trial the plaintiff was called" as a witness and gave a state- ■ ment of what he had done, but did not state the value of his services. A witness was then called who testified that he lived in Saratoga Springs, was a lawyer, had been admitted eight or nine years; had some familiarity with the work connected with the settlement of claims against railroads; had seen other claims than those lie had himself settled ; had heard to- some extent the prices charged for doing that kind of work by others, and had a notion of the value of that kind of work. A hypothetical question was then put to the witness as to the value of the services of “ a person in Saratoga Springs, * * * a person not a lawyer,” upon an assumed state of facts which included not only the services of such a person in settling a railroad claim, but also in going upon the bond of the administratrix for $6,000, and in endeavoring, for a matter of three months, to make loans of the money received, and finally securing a loan of $2,500 which the administratrix rejected. There was no evidence that the witness knew anything about the value of the-services of a person in becoming a' surety upon such a bond,, or in negotiating loans. The question was objected to as incompetent; that the witness was- not shown competent to express an opinion on the value.of the services stated. The objection was overruled and defendant excepted. The question was asked and answered as an entirety. .As to a portion he .was not shown competent to: speak, and.this portion, judging from the course of -the trial and the size of the verdict, was a material one.' The witness was not asked the value of the services of the plaintiff; it did not appear that he was acquainted with the plaintiff, There was no other evidence' of value, except an answer to the same hypothetical question put to another witness.whose qualifications for answering were no better, and to which the same objection was taken and ruling made, The ob jection was, we think, a good one, and the exception was well taken.

Both of the witnesses on the question of value'testify,, upon their cross-examination, that their knowledge as to charges for settling claims was confined to cases of charges by lawyers. So that any inference from their opinions, as well as the verdict of a jury based on them, as to- the value of the services of the plaintiff, a retail grocei’j would, to say the least,'be somewhat speculative.

The court charged the jury that the plaintiff could not recover, if the -services were rendered without, any expectation of being paid for. The jury, by their verdict, say there -was such an .expectation.

The parties were relatives, on very-intimate terms, and so continued up to May, 1895, when some, dissatisfaction was manifested about a security and the friendly relations terminated. All of the services in question had been rendered before this, and no charge therefor had been made by the plaintiff. He had told the defendant, soon after the funeral of her husband, that anything he could do for her he would be glad to do. Afterwards she asked him to go to Albany and see what the railroad company would do, saying, that “I will pay your expenses and all trouble. * * * How, will you do this for me; you don’t know how I hate to ask it.” He replied, “ Of course, I will go to Albany for you, or anywhere else that I can be of service to you; Carrie, don’t say that you hate to ask me to do for you,” and then referred to former kindness on her part. He appeared before the railroad agent as the relative and friend of defendant. ■ After she received payment from the company she paid the plaintiff for his expenses, and nothing was. then said about any other charges. The plaintiff had $1,000 of the money and gave the defendant his note for it. He never, in any interview with the defendant, told her he had any charge for services, and the first time he made any such claim was through an attorney in the fall of 1895. Very evidently, up.to the dispute in May, 1895, the plaintiff had no desire or expectation of pecuniary payment from the defendant. He so testifies in substance. He says he had not made up his mind to make any charge until after that time. True, the defendant had offered to pay him, hut the plaintiff by his conduct, if not by his words, had repudiated any such idea, just as a man naturally would do under such circumstances. The idea of a charge was an afterthoright, and the result of the severance of' their friendly relations.

We are inclined to the opinion that the finding that the services were rendered with the expectation of being paid for, is against the weight of evidence. It is suggested that this . question cannot.be raised as no motion, for a nonsuit was made. That does not seem to be a condition precedent to a motion made, under section 999 of the Code of Civil Procedure, for a new trial upon the ground that the verdict is contrary to the evidence. (Picard v. Lang, 3 App. Div. 51, and cases cited.)

It follows that the judgment should be- reversed.

All concurred, except Putnam, J., not acting.

Judgment- and order reversed and a new trial granted, costs to abide the event.