Reardon v. Clover

Mr. Justice Crabtree

delivered the opinion of the court.

This was an action of assumpsit by appellee against appellant to recover an amount the former claimed was due him from the latter for attorney’s fees and legal services. There was a trial by jury resulting in a verdict in favor of appellee for $468.84, upon which the court rendered judgment after overruling a motion for new trial, and appellant prosecutes this appeal.

It appears from the evidence that prior to commencing suit appellee presented to appellant a bill for $229.34, which appellant refused to pay. Appellee then brought this suit and filed with his declaration a bill of particulars or copy of account sued on, the items of which amounted to $229.34. During the pendency of the suit, appellee obtained leave of the court to amend his declaration by increasing the ad damnum to $500, and also to file an amended bill of particulars, which was done, and the amended bill amounted to $468.84. It is insisted that appellee having once presented his bill for $229.34, and drawn on appellant for that amount, was bound by such action and could not afterward recover for a greater amount. The case of Daniels v. Wilber, 60 Ill. 526, is relied upon by counsel for appellant to sustain this contention. The facts of that case are so entirely different from those in the one before us, we do not think the decision controls the question involved here. W„e are of the opinion appellee was not precluded from claiming a larger amount than was demanded in the original account, nor from recovering it if the proofs justified it. Appellant did not assent to the account nor promise to pay it, but refused to pay at all. It was for the jury to determine the weight to be given to the account rendered as an admission of the extent of appellee’s claim. Williams v. Glenny, 16 N. Y. 389; Stryker v. Cassidy, 76 N. 7. 50.

There was a conflict in the evidence as to whether or not the services were performed under a special contract for a fixed price. This was a question of fact for the jury, and they having found against appellee upon this point, we see no good reason for disturbing their verdict.

Fault is found in regard to the examination of appellee, and in permitting him, while testifying as a witness, to refer to the bill of particulars. Ho foundation having been laid therefor this was no doubt erroneous, but as there is no dispute as to the services having been performed, the error was harmless. The only questions for the jury were, whether the services were performed under a special contract, and if not, then what they were reasonably worth. As to the value of the services in the absence of a special contract, the verdict is fully supported by the evidence. While a reference to and examination of the files in the cases in which services were rendered, were undoubtedly proper to enable the witnesses to give an opinion as to the value of the services, it was error to receive them all in evidence, but the only harm we can see was done by their admission was to unnecessarily lengthen the record and add to the costs of appellant in bringing the case to this court, as the bill of exceptions shows they were not read to the jury.

Complaint is made of the instructions, but we think, as a series, they fairly presented the law of the case to the jury and were not erroneous. There was no error in refusing instructions.

The judgment will be affirmed, but one half the costs of the record will be taxed against appellee. Judgment affirmed.