William Stake & Co. v. Roth

| N.Y. App. Term. | Jun 15, 1915

Lead Opinion

Lehman, J.

The plaintiff sues for services rendered at defendants’ special instance and request for adjusting loss, preparing proofs and collecting loss suffered by a fire on January 2,1914. It appears from the .testimony produced by the plaintiff that prior to the fire it had procured the insurance for the defendants and that on January second after the fire the defendants’ representative stated that he “ wanted Stake & Company to take charge of the matter and adjust the insurance for O. Roth & Co.” According to plaintiff’s testimony ‘ ‘ he said he didn’t want to have a public adjuster but wanted us to be the adjusters.” Thereafter the plaintiff performed services for the defendants in adjusting the loss, filing proofs of loss and collecting the insurance. Until January nineteenth the plaintiff did not have a license to act as adjuster as required by chapter 22 of the Laws of 1913, and a substantial part of the work was performed on that date. Under that statute as amended by chapter 622 of the Laws of 1913 it is provided that “ No person, partnership, association or corporation shall, after July 1st, 1913, act as a public adjuster, or receive for or because of services rendered in the adjustment of any claim or claims for loss or damage by fire under a policy or policies of insurance upon property within this state any money or commission or other thing of value, without first procuring a certificate of authority to act as a public adjuster from the superintendent of insurance.” The statute also provides: “ The term ‘ public adjuster ’ in this section shall include every person * * * receiving any compensation or reward for the giving of advice or assistance to the assured in the adjustment of claims for loss or damage by fire.” Under this statute it seems quite clear that any agreement, express or implied, to pay for services rendered up to January nineteen would be illegal and void. It is true that the defendants thereafter requested and the plaintiff performed other services but such request could not in my opinion act as a ratification of any earlier promise. Even if at that time the defendants had made an express promise to pay for the services theretofore rendered such a promise would, I think, still have been illegal, for the statute has expressly prohibited the performance of such services for compensation and I can see no distinction whether the promise to compensate be made before or after the license is granted, so long as the services were performed for reward or compensation.

It is urged, however, that the judgment may be sustained on the theory that it represents only a fair compensation for services rendered after the date when the license was granted. There is, however, no proof of the value of such services. Moreover, the plaintiff’s claim for the value of its services rests not upon any express promise to pay for them, but upon the implied promise to pay for services rendered at defendants’ request. There, can of course be no doubt but that ordinarily where one party requests another party to render services in his behalf the law will imply a promise to pay the reasonable value of those services. However, the law implies this promise only because ordinarily a party requesting the rendition of services can hardly expect to have them rendered gratis, but where the services are rendered under such extraordinary circumstances as to give rise to the reasonable inference that they would be rendered gratis, then no promise to pay for them can be implied. Such extraordinary circumstances exist in this case. The statute not only prohibits the performance of the services requested for compensation or reward, but it expressly states that “ this section shall not apply * * * to a broker acting as adjuster without compensation for a client for whom he is acting as broker.” Where the law expressly forbids a person to perform services for compensation but expressly permits Mm to perform them without compensation then the law can certainly not imply a promise to pay compensation for such services. There was consequently no implied promise to pay for any services performed at the request of the defendants made on January second, and I think the evidence clearly shows that all the services were performed pursuant to this request. The subsequent requests of the defendants were not for new services but merely part of the correspondence necessitated by the plaintiff’s having assumed to perform the work of adjusting the loss and, since the defendants made these requests without knowledge of any change of condition, no promise to pay for such services can be implied from the accept’ anee of these services.

Judgment reversed, with costs, and complaint dismissed, with costs.

Whitaker, J., concurs.

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Dissenting Opinion

Guy, J.

(dissenting): Defendants appeal from a judgment in favor of plaintiff in an action to recover for services alleged to have been rendered by plaintiff in adjusting and collecting a fire insurance claim for defendants.

The evidence fully sustains the allegations of employment of plaintiff by defendants and the rendition of services in accordance with such employment. The defendants-appellants rely mainly upon this appeal on the exception taken to the refusal of the court to dismiss the complaint at the end of plaintiff’s case on the ground that, at the time of the alleged employment, plaintiff had not, as required by chapter 22 of the Laws of 1913, obtained a license as a public adjuster. The fire occurred January 2, 1914, and the alleged employment immediately thereafter; and it is conceded that although plaintiff’s application for a license antedated the time of the alleged employment the license to do business as a public adjuster was not actually issued to plaintiff until the 19th day of January, 1914.

It is conceded by the plaintiff-respondent that the alleged contract was but a single transaction and did not constitute holding itself out as an adjuster or engaging in the business of public adjuster. This contention is without merit. The statute defines what constitutes engaging in business as a public adjuster, and the services performed by plaintiff come clearly within that definition. The alleged contract of employment, therefore, was- not valid when originally entered into; but there is further proof that after plaintiff had been duly licensed on the 19th day of January, 1914, the defendants, in their letter dated January twenty-first, ratified the employment and requested further service by plaintiff, and further service was actually rendered by plaintiff for the defendants, which resulted in the adjustment of the loss and the collection of the claim after plaintiff had been duly licensed.

The evidence establishing renewal or continuation of the contract after plaintiff was duly licensed, and performance thereunder, I think is sufficient to sustain the verdict.

The judgment should be affirmed, with costs.

Judgment reversed, with costs.