
    Jane Quinn, Respondent v. Reuben W. Van Pelt, Appellant.
    (Argued April 2, 1874;
    decided April 28, 1874.)
    Where upon the breach of a contract the party injured brings his action, not to rescind the contract, but to recover damages for the breach, he thus affirms the contract and concedes the right of the other party to retain the consideration paid, and the onus is upon him of proving the breach and the amount of damages, and. he can- only recover the damages thus proved.
    So, also, in an action ex delicto, against an attorney who has received a stipulated fee, for a breach of his professional duty, the measure of damages is not the amount of the fee, but the burden is upon tile-plaintiff of proving the damages he has sustained, not upon the defendant to prove how much of his fee he has actually earned.
    Appeal from judgment of the General Term of the Superior Court of the city of Hew York, affirming a judgment in favor of plaintiff, entered upon a verdict.
    The complaint herein, alleged in substance, that one Benjamin Rhead died, leaving a last will and testament, whereby he devised and bequeathed to plaintiff a large interest in his real and personal estate; that among the assets was a bond and mortgage, executed by defendant, for $3,000; that defendant, who was an attorney at law, agreed, in consideration that plaintiff would procure -the satisfaction of said mortgage, he would act as her attorney and counsel in and about the settlement of said estate; that plaintiff, in consideration thereof, procured an assignment of the bond and mortgage from the executor to herself, and executed to defendant a satisfaction-piece, and the mortgage was satisfied of record; that, thereafter, defendant willfully and corruptly misconducted himself by accepting employment from the executor and others, in controversies between them and plaintiff in matters relating to the estate, and by refusing to counsel and aid her in and about the settlement of the estate. Plaintiff claimed damages to the amount of $20,000.
    The making of the agreement was admitted in the answer. Evidence was given upon the trial tending to show the rendition of services by defendant on behalf of plaintiff under the contract; the value of such services was not proved. Evidence also was given of his accepting employment and conducting suits in opposition to her, relating to the estate.
    The court charged, in substance, that the burden of proving the value of the services performed by him was upon defendant, •that every intendment was to be taken against him, and that to sustain the defence they must be able to find evidence of the value of the services; if they were able to find such value, they were to deduct the same from the amount received and give a verdict for the difference. To which defendant duly excepted.
    The jury rendered a verdict for the $3,000 and interest.
    
      R. W. Van Pelt appellant in person.
    Plaintiff waived all objections to the contract by allowing and requiring defendant to go on rendering service under it, until it was fully performed. (Illion Bk. v. Carver, 31 Barb., 230; Lawrence v. Dale, 3 J. Ch., 23, 41; affirmed, 17 J. R., 437; 2 Den., 138; 21 Barb., 82.)
    
      James M. Smith for the respondent.
    In an action on a contract between an attorney and client, the burden of proof is upon .the attorney to show by extrinsic evidence, that all was fair and just, that the client acted understandingly and he in good faith. (Brock v. Burns, 40 Barb., 521; Currie v. Cowles, 6 Bosw., 452; 9 id., 642; Brotherson v. Consalus, 26 How., 213; Evans v. Ellis, 5 Den., 640; Ellis v. Messervie, 11 Paige, 467, 538.)
   Rapallo, J.

The validity of the agreement under which the defendant obtained the discharge of the bond and mortgage for $3,000, is not in question in this case. The action is not brought for the purpose of annulling or rescinding the contract, or recovering back the consideration, but for the enforcement of the contract and the recovery of damages for its alleged breach. Various breaches are set out in the complaint, and damages therefor to the amount of $20,000 are demanded. The plaintiff holds the defendant to his engagement, and claims from him damages for its non-performance to a much larger amount than the consideration which the defendant received for his undertaking. This claim necessarily affirms the contract, and concedes the right of the defendant to retain the consideration. Whatever we may think of the propriety of the original arrangement, we are compelled, in obedience to well settled rules of law, to hold that in such an action the onus is upon the plaintiff to prove the breach of the agreement and the amount of damages sustained by reason thereof, and that she can recover only the damages thus proved. The court, at the trial, reversed this order of proceeding and held that the plaintiff was entitled to recover back the consideration, less such sum as the defendant should prove to be the value of the services actually rendered by him under the agreement. We think that this was an erroneous view of the case, and it necessarily follows that we must reverse the judgment.

If regarded as an action ex delicto, for the breach by an attorney of his professional duty, the same result must follow. The measure of damages is not the amount of the fee which he received. The damages may be more or less than the amount of the fee, and the burden rests upon the plaintiff to prove them, and not upon the defendant to prove how much of his stipulated fee he actually earned.

These points are sufficiently raised by the exceptions, and we must, therefore, reverse the judgment and direct a new trial, with costs to abide the event.

All concur except Grover, J., not voting.

Judgment reversed.  