16 N.Y. 389 | NY | 1857
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *391 The paper produced by the defendant was evidence merely, and not in any sense conclusive in its nature. There was no proof of an acquiescence in it, or an assent to its correctness, on the part of the defendant. From the unsigned receipt at the foot, it would appear to have been tendered for immediate payment, but it was not pretended that payment had been made, nor was it shown when or under what circumstances the paper came into the possession of the defendant. Had it been a settled account, it would have been subject to be reëxamined upon proof of a mistake; and we cannot say that the evidence produced by the plaintiff to prove the prices, was not of such a nature as to show that the claim for this considerably smaller sum was clearly a mistake. But I do not think a claim for a round sum, where the subject of the demand is one which would naturally consist of many items, is in the nature of an account. It is no doubt an admission, and as such prima facie evidence, limiting the plaintiff's claim to the amount mentioned. But we must presume that the plaintiff gave evidence sufficient fairly to overcome the presumption which the paper afforded.
The judgment should be affirmed.
Concurrence Opinion
The plaintiff performed certain services for the defendant, as solicitor and proctor in the courts of the United States, and subsequently rendered a bill of such services to the defendant, in which he charged for those services, in gross, the sum of $150. The bill was dated *392 April 4, 1853, but when it was presented to the defendant did not appear. Subsequently, in December, 1853, this action was commenced for those services, on a quantum meruit, and on the trial the plaintiff proved those services to be worth about $500. The defendant gave in evidence the bill rendered by the plaintiff, in which the services were charged at $150, and insisted, before the referee, that the plaintiff could recover only that sum for those services. The referee decided otherwise, and defendant excepted. I am of opinion the referee decided correctly. The plaintiff's own estimate of the value of his services was high evidence against himself, and no doubt had its due weight given to it by the referee, but it was not in the nature of an estoppel to preclude the truth. Had the defendant paid the bill when presented, it would have been an accord and satisfaction of the services, although less than their real value. But the defendant chose to litigate, and the question of value of the services was open to proof as a question of fact. This is the only question of law raised in the case, and the judgment should be affirmed.
All the judges concurring,
Judgment affirmed.
