Dickerson v. Scheuer , 1888 N.Y. Misc. LEXIS 1371 ( 1888 )

Freedman, J.

The evidence on behalf of the defendants was not sufficient to sustain a finding by a jury that the plaintiffs had agreed, as part of their contract, that the total expense of the litigation to the defendants was not to exceed $5,000, and hence there was no error in withdrawing that branch of the case from the consideration of the jury. The next question is whether there was sufficient evidence to sustain the verdict which the jury rendered in favor of the plaintiffs. The complaint alleged an indebtedness by the defendants to the plaintiffs upon an account of services rendered by the plaintiffs as attorneys and counselors, and moneys paid out by them, at defendants’ request, during a certain specified period. This did not necessarily mean an indebtedness upon an account stated. But the trial of the issues proceeded without much regard for pleadings. The plaintiffs elected to proceed upon an account stated, and the court, at the close of the evidence on both sides, allowed an amendment of the answer, and then an amendment of the complaint, so as to make it conform with the facts proved. The defendants made no claim that it should be done in such a formal manner that the record would show precisely what the amendment was; nor did they take an exception. For'all that appears they fully acquiesced, and consequently they cannot maintain that there was error in the ruling. Upon the question whether the plaintiffs have sufficient evidence to call for the submission of their case as one upon an account stated to the jury, it must be held, under the decision of Case v. Hotchkiss, *42 N. Y. 334, that they did. The fact that some of the defendants denied that they had assented to the bill as rendered, and promised to pay it, could not defeat such submission, but only made the case one for the jury. Under the circumstances of the case the exceptions which were taken by the defendants are untenable. The judgment and order should be affirmed, with costs.