
    Charles Burlingame et al., Resp’ts, v. James D. Shelmire, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 23, 1891.)
    
    1. Account stated—Personal services.
    In cases where the prices are not agreed upon, or where they are not fixed by the marker, but depend solely upon personal services, the value of which is to be determined by the principle of quantum meruit, the general rule relating to accounts stated does not necessarily prevail.
    3. Same.
    Defendant was employed by plaintiffs to receive from farmers and ship fruit needed by them in their business, and was furnished with money to pay for the same. No rate of compensation was agreed upon. In an action to recover the balance alleged to be in his hands, he set up an account furnished in 1888 to plaintiffs containing his charges for services, and claiming a balance due him, which he claimed to be an account stated. Held, that the rule as to accounts stated did not apply, and that evidence as to the value of the services was properly received.
    Appeal from a judgment of the county court of Monroe county, ■entered February 26, 1890, affirming a judgment of the municipal court of the city of Rochester in favor of the plaintiffs for the sum of $68.90, damages and costs.
    
      H. FI. Woodward, for app’lt; Nathaniel Foote, Jr., for resp’ts.
   Macomber, J.

The sole contention made at the trial and upon this appeal in behalf of the defendant relates to an account sent by the defendant to the plaintiffs for services in receiving and shipping fruit in behalf of the former.

The plaintiffs, who conduct a canning factory at Fairport, N. Y., purchased in the summer of 1887 fruits for canning, such as tomatoes, apples and pears, of farmers in the vicinity of Brighton, with an arrangement by which such fruits should be delivered at the railroad station at the village of Brighton. The contract with the defendant was, that he should receive the goods from such farmers, measure or weigh and load them upon cars and ship the same to the plaintiffs at Fairport. The compensation for such services was left open and undetermined. From .time to time the plaintiffs furnished money to the defendant, amounting in all to the sum of $525. The defendant, between the 19th day of August, 1887, and October 11th of that year, expended $323.18 of such moneys in paying the freight and for weighing and handling fruit and in paying in certain instances the farmers who desired advanced payments. At the close of the business defendant had in his hands of the plaintiffs’ moneys the sum of $201.82, for which sum this action was brought. The answer alleged that on the 1st of March, 1888, the defendant rendered to the plaintiffs an account stated, wherein there was set forth all the matters between the parties up to that date showing fully the items of the defendant’s charges for services and claiming a balance due the defendant, for which judgment was asked, in the sum of $7.75. It was claimed, inasmuch as the plaintiffs retained this statement without making objection thereto for a year and upwards, that it thereby became an account stated between the parties. The only matter litigated, and the only matter before us upon appeal, is the value of the defendant’s services, and whether the evidence offered by the plaintiffs upon that subject was properly received under the claim made that the account so rendered, by the defendant to the plaintiffs, was an account stated and thus binding upon the parties.

No pretence is made in behalf of the plaintiffs that any deceit was practiced by the defendant or any evidence given that the account was fraudulent or that the same was a result of a mutual mistake.

The general rule doubtless is that one who receives an account and retains it without objection will be deemed by his silence to have acquiesced in its correctness, and that it will become presumptively binding upon him. This presumption, however, is only one relating to the evidence, and may be overcome by setting up fraud of the party rendering it, or the mutual mistake of the parties. Avery v. Leach, 9 Hun, 106.

But the cases relating to this subject are those where an actual account has existed between the parties. But in cases where the prices are not agreed upon, or where they are not fixed by the market, but depend solely upon personal services, the value of which is to be determined by the principle of quantum, meruit, the general rule relating to accounts stated does not necessarily prevail. We think the rule is not applicable to the facts disclosed in this case. In Williams v. Glenny, 16 N. Y., 389, the plaintiff had performed services for the defendant as solicitor and proctor, and subsequently rendered a bill thereof to the defendant, in which he charged the gross sum of $150. About eight months thereafter the plaintiff brought an action to recover the value of such services on a quantum meruit, and proved such value to be largely in excess of the sum charged in the bill previously rendered. On putting in evidence the bill as rendered by the plaintiff it was contended that the same was conclusive against the plaintiff, and the recovery should be limited to the sum then claimed. The decision was otherwise. The court held that there was no estoppel pleaded or proved to preclude evidence of the actual value of the services. The question of the value of the services was held to be open to proof as a matter of fact

In the case of Harrison v. Ayers, 18 Hun, 336, an architect had presented a bill for professional services, which was retained sufficiently long by his client to permit the principle of an account stated' to be applied, provided the nature of the claim was one to which it was applicable.

The bill not having been paid, an action was brought for a much larger sum than was claimed to be due according to the terms of the bill, and a recovery was had for the actual value of such services, which was considerably more than the sum charged for in the bill originally rendered. The court there held, in accordance with the principle laid down in Williams v. Glenny, supra, that the right to compensation was still open to be controlled by the evidence concerning the actual value of the services rendered.

We have considered the other point made by the learned counsel for the appellant in respect to the actual value of the defendant’s services, and we are of the opinion that the judgments of the municipal court and the county court were based upon a clear preponderance of the evidence, and that the allowance made to the defendant under his counterclaim was all that could be exacted on the principle of quantum meruit.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Corlett, J., concur.  