
    Barnett L. Hollander and Edgar J. Bernheimer, Appellants, v. Henry Kaufmann and Others, Respondents.
    First Department,
    April 7, 1916.
    Evidence — action on quantum meruit — damages —• evidence of special contract — attorney and client.
    Where attorneys at law sue on a quantum meruit for services rendered in connection with the financing of a proposed corporation, it is error for the court to exclude evidence of a special contract of retainer made by the plaintiffs through the defendant’s agent offered for the purpose of fixing the damages, or value of their services, upon the theory that such contract is at variance with the cause of action alleged in the complaint.
    Persons rendering services under a special contract may sue upon a quantum meruit and give evidence of the contract to fix the damages.
    Appeal by the plaintiffs, Barnett L. Hollander and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 8th day of December, 1914, upon the dismissal of the complaint by direction of the court at the close of the plaintiffs’ case.
    
      John A. Oarver, for the appellants.
    
      Henry L. Scheuerman, for the respondents.
   Davis, J.:

This action was brought to recover for services alleged to have been rendered by the plaintiffs at the request of the defendants. The complaint alleges that the plaintiffs were partners engaged in the practice of law and that the defendants were partners conducting a large department store business in Pittsburg, Penn., under the firm name of Kaufmann Brothers; that between the latter part of June, 1912, and the 11th day of October, 1912, the plaintiffs at the request of the defendants performed certain services for the defendants which the defendants accepted, adopted and ratified. The complaint goes on to specify the kind of services rendered, briefly as follows: That the defendants wanted to dispose of their business to the public by organizing a corporation with preferred and common stock, and wanted to obtain the assistance of New York bankers to finance the project; that in 1912 the defendants had been in negotiation with a firm, of bankers in New York, which negotiations had not gone on satisfactorily; that the defendants asked the plaintiffs to bring them into communication with "other bankers, agreeing that if these bankers would enter into an arrangement satisfactory to the defendants the defendants would carry out said arrangement; that the plaintiffs brought the defendants into communication with such bankers in the city of New York; that the bankers were of a recognized reputation, experience and standing in such matters, and were of sufficient financial ability and influence to carry out the defendants’ wishes; that the defendants through the efforts of the plaintiffs entered into negotiations with the said bankers, and that such negotiations were carried on between the said bankers and the defendants, aided by the plaintiffs; that on or about October 11, 1912, the defendants agreed with the bankers upon terms and conditions satisfactory to both parties, by which the business of the defendants was to be incorporated upon a basis of $2,500,000 par .value preferred stock and $7,500,000 common stock; that the bankers were to purchase the whole issue ($2,500,000 par value) of preferred stock and $1,500,000 of the common stock by paying therefor $2,500,000 in cash. The complaint further alleges that thereafter the defendants refused to consummate this agreement, and notified the bankers that they would not do so. Then the complaint alleges that the services so rendered by the plaintiffs to the defendants were reasonably worth the sum of $350,000; that the plaintiffs had been damaged in that amount, and demands judgment for the sum of $350,000. It thus appears, that the plaintiffs sought to recover on a quantum meruit. The answer is a general denial.

Under an order of the court the plaintiffs furnished the defendants with a bill of particulars and thereafter a further bill of particulars in which the plaintiffs set forth in minute detail the particulars of their demand, as well as a good deal of the evidence upon which they rely to prove this case.

■ In support of their claim the plaintiffs called as their first witness Mr. Bernheimer, one of the plaintiffs. He was questioned at length on the direct examination and before his testimony was concluded all of the testimony given by him was stricken out by i the court on the ground that the contract testified to by the witness was at variance with the cause of action alleged in the complaint. Before taking this action the court had assurances from the plaintiffs’ counsel that whatever other evidence he had to offer in support of his claim would refer to the contract as testified to by Mr. Bernheimer. This assurance was followed by an assurance from defendants’ counsel that they would object to all such evidence. In view of these statements of counsel the court said that it would exclude all such evidence and that it was, therefore, useless to proceed and take up the time of the court any further. The plaintiffs thus were forced to rest their case, with the statement, however, that .the additional proof which they had intended to offer was evidence corroborating Mr. Bernheimer together with evidence showing the ratification and adoption of the contract by the defendants. Thereupon the complaint wTas dismissed on the ground that the contract testified to by plaintiffs’ witness was different from the contract set up in the complaint.

The plaintiffs had sought to show by the testimony which was struck out, and by the proposed testimony which was rejected by the court, a contract for services between the plaintiffs and the defendants, made through defendants’ alleged agent, Theodore Kaufmann, and an adoption and ratification of that contract by defendants. The court allowed the witness to testify to conversations between Bernheimer and Theodore Kaufmann upon the promise of the plaintiffs' to show subsequently the agency of Theodore Kaufmann and the ratification and adoption of the contract by defendants. It appears from this testimony if true that there was an agreement to render services substantially the same as those alleged in the complaint, that is, the plaintiffs were to procure bankers of high standing and financial ability to finance the enterprise of the defendants upon terms acceptable to the defendants, and bring the negotiations to a point where the bankers and defendants should come to an agreement upon the terms and conditions satisfactory to both parties. The witness testified that in consideration of these services, the plaintiffs were to receive from the defendants a promoter’s compensation. But as already stated the plaintiffs’ testimony was eliminated from the case. In their complaint the plaintiffs declared upon an implied assumpsit and sought to recover the reasonable value of their services. The testimony showed an express agreement to render the very services set forth in the complaint, and the right to compensation depended upon the same fact — the bringing of the parties to an agreement as to terms and conditions.

We fail to see any variance between the agreement as testified to and the cause of action alleged in the complaint. It is simply a case where the plaintiffs having rendered services under a special contract sue upon a quantum meruit, and giye in evidence the special contract for the purpose of fixing the damages, i. e., the value of the services —a course quite usual and well supported by authority. (Farron v. Sherwood, 17 N. Y. 227; Boyd v. Vale, 84 App. Div. 414; Rubin v. Cohen, 129 id. 395.)

We think the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Clarke, P. J., Laughlin, Scott and Page, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  