Gunning v. Rosen
| Decision Date | 13 January 1928 |
| Docket Number | No. 6427.,6427. |
| Citation | 139 A. 790 |
| Parties | GUNNING v. ROSEN. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Frederick Rueckert, Judge.
Action by William A. Gunning against Sigmund Rosen. Verdict for plaintiff, defendant's motion for new trial was denied, and defendant brings exceptions. Exceptions overruled.
George F. Troy, of Providence, for plaintiff.
Frank H. Bellin, of Providence, for defendant.
This is an action of the case in assumpsit to recover the value of certain professional services which the plaintiff alleges he performed as an attorney at law at the request of and for the benefit of the defendant.
The case was tried before a justice of the superior court, sitting with a jury, and resulted in a verdict for the plaintiff for $425. The defendant duly filed a motion for new trial which was denied by the justice. The case is before us on the defendant's exception to the decision of the justice denying the motion for new trial and upon certain exceptions of the defendant to rulings of the justice made in the course of the trial.
The defendant excepted to portions of the charge to the jury which were contrary to the defendant's claim that, in no case should the plaintiff be permitted to recover more than $225, for the reason that the plaintiff before commencing suit had repeatedly rendered a bill to the defendant, claiming a balance of $225. This the plaintiff admitted in his testimony at the trial. It was also not contradicted by the defendant that he did not assent to the account as thus rendered, and that he did not comply with the demands for payment which accompanied it, but entirely disregarded the plaintiff's claim. In these circumstances the rendition of the plaintiff's claim, to which the defendant did not assent, does not amount to an account stated, and the plaintiff's recovery will not be restricted thereby.
The plaintiff was permitted to offer proof as to the value of his services in excess of the account rendered, and the jury were instructed to determine that issue from the circumstances of the case and from all the proof offered. The jury were also properly instructed that in passing upon the question of the value of the plaintiff's services they should give great weight to the fact that the plaintiff had rendered a bill for $225 as evidence of the plaintiff's own estimate as to the real value of such services. The defendant's exceptions relating to these instructions are without merit.
The evidence discloses that the plaintiff acted as counsel for the defendant in two actions at law pending against the defendant in the superior court; that said actions were upon the jury trial calendar of that court for trial upon Monday, February 19, 1924; and that on Sunday, February 18, 1924, the defendant by his agent engaged the plaintiff to enter...
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Higgins v. J. B. Farnum Co., 7989.
...this bill did not amount to an account stated, in view of the fact that the defendant declined to accede to its terms. See Gunning v. Rosen, 49 R.I. 59, 139 A. 790. Since the defendant would not agree to his bill as figured on a contingent basis, the plaintiff submitted the bill now sued on......
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