Newman et at. v. Levi et al.
| Decision Date | 28 April 1914 |
| Citation | 74 W.Va. 223 |
| Court | West Virginia Supreme Court |
| Parties | Newman et at. v. Levi et al. |
Fees for services rendered by an attorney-at-law in a suit or legal proceeding may be recovered upon the common counts in an action of assumpsit against his client, (p. 225).
2. Pleading Bill of Particulars Sufficiency.
A bill of particulars filed with the declaration in such action, giving date of the services, the suit or proceeding in which they were rendered and the sum charged for the entire services is sufficient, (p.224).
3. Tender Effect Admissions.
A debtor who appears to the action and tenders a certain sum in satisfaction of the creditor's claim thereby admits every fact which plaintiff would have to prove to entitle him to a judgment for the amount tendered, (p. 226).
Error to Circuit Court, Ohio County.
Action by Charles C. Newman and others against David Levi and others. Judgment for plaintiffs, and defendants bring error.
Affirmed.
John A. Howard and McCamic & Clarke, for plaintiffs in error.
J. B. HandIan. for defendants in error.
This writ of error was awarded defendants to a judgment for $9,500, in an action of assumpsit by Chas. C. Newman, Martin Brown and John J. Coniff for the value of professional legal services rendered in behalf of the defendants, David Levi and H. W. Hunter, in a certain bankruptcy proceeding in the federal court against the Bituminous Coal Company of America, in which a coal lease made by said Levi and Hunter to said company was involved. They had leased to said company 1172.45 acres of coal and 28 acres of adjoining surface. The lease provided for the payment of minimum annual royalties and, in default of their payment on or before 1st September, 1909, authorized the lessors to avoid the lease, after giving thirty days notice of their intention so to do. The company defaulted, owing the lessors over $26,000 of royalties. Levi and Hunter caused notice of their intention to forfeit the lease to be served upon said company, but before the expiration of the thirty days, some of the company's other creditors had instituted bankruptcy proceedings against it. The result was a long drawn out and tedious litigation in the federal court, and a sale and purchase, by the lessors, of the lease at the price of $4,000, including the machinery and improvements which the lessees had erected on the leased premises in the meantime, aggregating about $53,000 in value.
Plaintiffs are not partners in the practice of law, but rendered joint services for defendants in that proceeding, engaging in numerous consultations with them, and making many appearances before the federal court and the referee in bankruptcy, in looking after their interests. After the litigation had ended plaintiffs rendered a joint bill for $8,000 which defendants refused to pay. They thereupon brought the present suit. After pleading the general issue, and before the jury were sworn, defendants tendered $1,500 in satisfaction of plaintiffs' demand which they declined. Thereupon a trial was had resulting in a verdict and judgment for plaintiffs for the sum above stated.
The first assignment of error is the overruling of defendants' motion for a more specific bill of particulars. The account filed with the declaration styles the action, sets out in full the names of plaintiffs and the names of defendants, and then proceeds as follows:
"David Levi and II. W. Hunter Dr.
To Charles C. Newman Martin Brown and John J. Coniff.
June 1-11. For professional services rendered by the above named plaintiffs for David Levi and H. W. Hunter in the Bankruptcy proceedings against the Bituminous Coal Company of America lately pending in the United States District Court for the Northern District of West Virginia. $15000.00. Interest on the above amount will be claimed from June 1st, 1911."
We think this bill of particulars was a sufficient compliance with the law. It apprised defendants of the amount of the claim and that it was for professional services rendered in a particular suit of which they were themselves fully cognizant. It is not the custom among lawyers to keep account of. and make separate charges for, every hour of time spent in investigating doubtful points of law, in the preparation of legal documents, in appearances in court for motion or argument, or before a commissioner in chancery or referee in bankruptcy, in taking depositions, or in consultations with clients, when all these things occur during the progress of an important and long continued suit. They do not keep and render their accounts, according to the custom among physicians who usually charge for their services by the number of their visits to their patients, at so much per visit. But the custom among lawyers, and, so far as we know, it is the universal practice to render bills for a single charge for all services rendered on behalf of their client in-a particular suit. In view of the following authorities we think the bill of particulars was sufficiently explicit, and fully apprised defendants of the nature of plaintiffs' demands. Fitch v. Leitch, 11 Leigh 471; Moore v. Mmiro, 4 Eand. 488; Watts et al. v. Railroad Co., 48 W. Va. 262. If there had been a count in the declaration, alleging that the claim was for professional services rendered for defendants in a particular litigation, then there would have been no need to file a bill of particulars. Its use grew out of the employment of the common counts in actions of debt and assumpsit, which were so general in character as not to advise defendant of the particular nature of plaintiff's claim, and was designed to amplify the pleadings. 3 Enc. PI. & Pr. 518; Clark v. Railroad Co., 39 W. Va. 732. The declaration contains the common counts only, and does not apprise defendants of the nature of the services rendered, whether professional or other- wise. But the bill of particulars supplies this information; and fees for professional services of an attorney-at-law are recoverable upon the common counts for the price and value of work and labor performed. People &c. Go. v. Barrow, 70 I11. App. 20, affirmed in 172 I11. 62.
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