
    Fred. A. Bratt, Resp’t, v. James T. Scott and Samuel C. Scott, App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed April 4, 1892.)
    
    1. Attorney and client—Action for services—Evidence of retainer.
    In an action brought by an attorney to recover for services rendered in two actions, it appeared that plaintiff was not the attorney of record, but acted as local counsel; that he was employed by the attorney of record; that after the services were performed and bill rendered, defendant told plaintiff that Mr. C., the attorney of record, had the matter entirely in his charge, and on C.’s saying that the work had been done, and plaintiff ought to be paid, promised to. fix it up. Held, sufficient to establish the retainer óf plaintiff.
    2. Same—Estoppel—Acceptance of check.
    In such case plaintiff is not estopped by his having accepted and used a check for §85 sent him by C. with a letter which “ hopes it will be entirely satisfactory.”
    3. Same—Bill rendered not conclusive of value of services.
    The-fact that plaintiff had rendered defendant a bill of §50 for his services does not prevent his recovery in an action of a larger sum, if the services are shown to be of greater value than stated in the bill.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referee.
    
      George Carlton Comstock {Myer Nusbaum, of counsel), for app’lts; Fred. A Bratt, in person, for resp’t.
   Putnam, J.

This action was brought by plaintiff to recover for services performed for defendants between November 11, 1886, and September 1, 1889. He was employed by Mr. Corn-stock, the attorney of defendants, as local counsel, and one question raised on the trial was as to the authority of Mr. Comstock,

Plaintiff testified that after the services were performed he had. an interview with Mr. Scott, one of the defendants, at which he (plaintiff) made a claim for compensation. Defendant then said that Mr. Comstock had full management of the case; he was their representative. They had left the matter entirely to him, and on a subsequent interview, Mr. Comstock being present amt stating to Mr. Scott, the defendant, that plaintiff had performed services and ought to be paid, defendant promised to fix the matter up ; this conversation, in which defendant did not deny the authority of Mr. Comstock to employ plaintiff, but impliedly admitted it, could properly be deemed by the referee as an admission not only of Comstock’s authority to employ the plaintiff, but also as a subsequent ratification of his acts in making such employment if originally unauthorized. Harnett v. Garvey, 4 Jones & Spencer, 326; Keeler v. Salisbury, 33 N. Y., 648, and spe Foland v. Dayton, 20 W. Dig., 59. Defendant Scott at that time knew that Comstock had assumed to employ plaintiff as-local counsel, and in what actions he had been employed. He-was also informed that plaintiff had performed legal services on such retainers. Plaintiff had prior to this time sent in a bill to defendants for the services performed. Scott was, therefore, sufficiently in possession of the facts of the case to enable him to ratify the acts pf Comstock. Hence, the retainer of plaintiff was sufficiently proven.

The' check of thirty-five dollars sent by Comstock to plaintiff and which the latter received and used does not estop plaintiff from maintaining the action. The cases cited by appellants, Hills v. Sommer, 53 Hun, 392; 25 St. Rep., 1003; Looby v. Village of West Troy, 24 Hun, 78; Palmerton v. Huxford, 4 Denio, 166, were each cases of accord and satisfaction where there was a genuine dispute between the parties as to the claim, and a sum paid in settlement. Those cases do not apply here; they do not apply where a sum is paid on an unliquidated account, there being no real controversy as to the amount of the claim, even in cases where a receipt in full is exacted and given. The distinction between the two classes of cases is mentioned in Palmerton v. Huxford, supra, and see Ryan v. Ward, 48 N. Y., 204. In this case on September 14, 1889, when Mr. Comstock sent his letter and check of thirty-five dollars to plaintiff it does not appear that there was any controversy as to the amounf due plaintiff. Plaintiff’s account was not disputed. Comstock sent thirty-five dollars. He did not claim or insist that that sum was a full payment of plaintiff’s real claim. He “ hopes it will be satisfactory.’ If he had said in his letter your services-are not worth more than thirty-five [dollars, and defendant will not pay more than that sum and you must receive the enclosed check in full,- the case would have been different. The letter in question indicates that Comstock deemed that plaintiff’s services were worth,over thirty-five dollars, but he ought, under the circumstances, accept a sum less than the value thereof. He does not say that plaintiff must accept thirty-five dollars in full, but hopes he will. Under the circumstances the payment did not prevent plaintiff from maintaining the action.

The serious question in the case is as to the amount of plaintiff’s recovery. Two letters of Mr. Bratt’s are in evidence. In one he mentions having sent a bill to defendant for fifty dollars for the services in question. In the other he states that he considers his services for defendants worth fifty dollars. These letters were evidence of the value put by plaintiff upon his own services prior to any litigation. It is an admission upon his part of such value clearly proved by his letters, and, under the circumstances, strong evidence of the real value. I should be better satisfied with the result if the referee had determined the value of plaintiff’s services at the sum so fixed by him in the letters prior to the litigation between the parties, rather than $200.

But an attorney after a litigation in which his clients have not been fortunate may be willing to accept and' to make out a bill for a much less sum than the real value of his services; and if he is compelled afterwards to commence an action to recover his compensation he may incline to and be justified in claiming the full value.

In this case both the plaintiff and another attorney, a Mr. Bascom, testified that the value of plaintiff’s services for which the action is brought exceeds $200. JSTo witnesses were sworn on the part of the defendants on the question of value. Therefore, the only evidence before the referee on this question was the testimony of the two witnesses above mentioned and the admission contained in plaintiff’s own letters.

The referee might have determined that the letters stated the true sum plaintiff was entitled to recover, relying upon them rather than upon the testimony as to the value given upon the trial. But he, an able and experienced lawyer, on sufficient evidence, reached another conclusion, and determined that plaintiff’s services performed for defendants were of the value of $200. We cannot say that the finding of the referee is unsupported by the evidence and reverse the judgment for that reason. There being sufficient evidence to support the finding, it should not be disturbed. Roosa v. Smith, 17 Hun, 138.

It has been decided that the presentation of a bill for a certain amount does not prevent the recovery of a larger sum if the services can be shown of greater value than stated in the bill. Harrison v. Ayers, 18 Hun, 336; Williams v. Glenny, 16 N. Y., 389; Sherwood v. Hauser, 94 id., 626-628; Stryker v. Cassidy, 76 id., 54.

In Williams v Glenny, supra, p. 392, the bill rendered was $150, and the recovery $500, and the court remarked : “ The defendant gave in evidence the bill rendered by plaintiff, in which the services were charged at $150, and insisted before the referee that the plaintiff could recover only that sum for the services. The referee decided otherwise, and defendant excepted. The. plaintiff’s own estimate of the value of his services was high evidence against himself, and no doubt had its due weight given to it by the referee, but it was not in the nature of an estoppel to preclude the truth. Had the defendant paid the bill when presented, it would have been an accord and satisfaction of the services, although less than their real value. But the defendant chose to litigate, and the question of value of the services was open to proof as a question of fact.”

The judgment must be affirmed, with costs.

Herrick, J., concurs.  