Barney v. Fuller

• Decision Date: 03 May 1892
• Citation: 30 N.E. 1007,133 N.Y. 605
• Parties: BARNEY v. FULLER et al.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 605

30 N.E. 1007

BARNEY

v.FULLER et al.

Court of Appeals of New York.

May 3, 1892.

Appeal from supreme court, general term, fourth department.

Action by Martin Barney against L. E. and T. K. Fuller. From a judgment of the general term affirming a judgment entered on a verdict for plaintiff, defendants appeal. Affirmed.

L. E. & T. K. Fuller, pro se.

Henry Purcell, for respondent.

EARL, C. J.

The complaint in this action alleged that the defendants were a firm of attorneys and counselors at law, doing business at Syracuse, N. Y.; that in November, 1887, the plaintiff delivered to one of the defendants the sum of $930, to be retained by his firm until called for by the plaintiff, and that the defendants collected and received for him the further sum of $1,200, under a power of attorney from him; that they refused to pay over the sums thus received, or any part thereof, to him, and unjustly, wrongfully, and unlawfully converted the same to their own use; that before the commencement of the action he duly demanded the sums of money mentioned of the defendants, amounting to $2,130; and he prayed judgment against the defendants for that sum, besides interest. The substance of the answer of the defendants is that they acted as attorneys for the plaintiff under an agreement by which they were to receive $3,000 for their services, and that they received the two sums mentioned in the complaint to apply as payment under that agreement. Upon the trial of the action it was undisputed that the defendants had acted as attorneys for the plaintiff, and had rendered services for him as such. The plaintiff gave evidence tending to show that the defendants rendered the services for him under a special agreement, by which they were to have $10 per day for their services while actually engaged in his service, besides their expenses when absent from home. The defendants, as witnesses on their, own behalf, denied that agreement, and gave evidence tending to show that they rendered the services under a special agreement by which the plaintiff was to pay them the gross sum of $3,000, and that he was to pay them to apply upon that sum, while they were ingaged in rendering services, the sum of $10 per day, besides their expenses. Thus each party disputed the agreement alleged by the other. There was no dispute upon the trial that the defendants were entitled to retain out of the moneys which came to their hands whatever compensation was due to them for their services, and the entire controversy between the parties was as to the amount of that compensation. The defendants could not be compelled to pay over to the plaintiff these moneys until they had been paid for their services; and hence it was competent and material upon the trial to determine the agreement between the parties as to the compensation, and the amount thereof. Upon the trial the plaintiff offered to show by competent evidence the value of the defendants' services. The defendants objected to this evidence, but the trial judge overruled the objection, and received the evidence; and in this it is strenuously contended by them that the trial judge committed...