Prout v. Bernards Land & Sand Co.

• Decision Date: 14 June 1909
• Citation: 77 N.J.L. 719,73 A. 486
• Parties: PROUT et al. v. BERNARDS LAND & SAND CO.
• Court: New Jersey Supreme Court

73 A. 486

77 N.J.L. 719

PROUT et al.

v. BERNARDS LAND & SAND CO.

Court of Errors and Appeals of New Jersey.

June 14, 1909.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Fred Prout and others against Bernards Land & Sand Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Harry V. Osborne, for plaintiff in error.

Clark & Case, for defendants in error.

PARKER, J. The plaintiffs below are a firm of attorneys, and sued the defendant corporation, whose business is indicated by its name, for services in making a search and abstract of title to a tract of land owned by it, and for disbursements connected therewith. The declaration consisted of the common counts in assumpsit, with a bill of particulars annexed, containing only one item, as follows: "June 12, 1906. To making search showing title of the Bernards Land & Sand Company at Basking Ridge, N. J., and money paid out for expenses in making same, $650." There was a verdict and judgment for plaintiffs for the full amount claimed, with interest.

The plaintiffs' evidence showed that no price had been agreed on in advance, but that in July, 1902, one of the plaintiffs was asked at a company meeting what he would charge to make a complete search of the land referred to for the company, and that he refused to set a price, offering to do the work either on the per diem basis or charge what it was worth when he bad finished it; that the matter was laid over for consideration, and several weeks later Mr. Dunster, the vice president and manager of the company, saw plaintiff, and said there had been another meeting, and the company had decided to have plaintiffs make the search, and he wanted them to make it as cheap as they could. The abstract of title was not tendered to the company until September, 1906, after a lapse of over four years, during which period important changes bad taken place in the defendant corporation. It bad been organized and managed as a close corporation, the board of directors being limited to three persons who apparently held all or most of the stock; one of these was Mr. Dunster, who, at the time the abstract and bill were presented, was the only survivor of the original incorporators and had been a director until April, 1906, when the board was reorganized after the death of the other two directors and Dunster was dropped. The new board refused to accept the abstract of title, and denied that the corporation had ever ordered the search. The trial judge submitted this question to the jury, and we find no error in his rulings on evidence or instructions to the jury so far as relates to this branch of the case. The verdict for plaintiffs, therefore, amounted to a finding that they had been regularly employed in 1902 to make the search.

But another important issue was raised as to the reasonable value of the services performed by the plaintiffs. On this issue the defense was twofold. It was denied in the first place that plaintiffs had performed any such amount of work as they claimed to have done; and alleged in the second place that the search, if ordered, was to have been made promptly, and that the delay for four years in presenting the abstract of title had greatly diminished its value to the defendant. Both these issues were opened on cross-examination of William Prout, one of the plaintiffs, and in the exclusion of questions bearing on those issues on that cross-examination we find error prejudicial to the defendant. As to the work actually performed, and its value, the witness testified to work done off and on in the county clerk's office and at his own, during the four years. He testified generally to the total amount of time and money spent. On cross-examination he stated that his firm had never made any book entries against the defendant, but that he kept the record of work and disbursements on this matter in his head. The following questions were then asked: "Do you say that you never kept a record of the work you did in any case? Do you keep a record of the time expended by you or devoted by you in the conduct of your business to various matters? When you do work for your clients, do you keep a ledger account, charging them for services? Do you keep when you do work for your clients, an account showing the amount of your disbursements in connection with the matter done?" Each of these questions was objected to and overruled, and an...