
    William H. Wiley, Respondent, v. Edward L. Goodsell, Appellant.
    
      Services—promise implied to pay therefor — liability for the expenses of an arbitration of one who withdraws from it —evidence.
    
    In an action brought to- recover the value of certain services and damages for the breach of an agreement to arbitrate the matter in dispute between the parties, it appeared that the defendant became ill, and through Milbank, his brother-in-law, employed the plaintiff, who conducted a similar business, to take charge of his own, and executed to the plaintiff powers of attorney upon four banks ' with which the defendant did business, giving the plaintiff the right to sign, accept and indorse checks, notes and drafts: A dispute having arisen as to compensation to which the plaintiff was entitled, the parties undertook to settle it by an arbitration, from which the defendant afterwards withdrew. The ' services rendered were substantial and involved the receipt and disbursement of some §800,000.
    
      Held, that while there was no actual agreement for compensation, the circumstances raised.au implied obligation on the part of the defendant to make compensation, and that, in order to rebut that presumption, there must be clear evidence that "the services were intended to be gratuitous;
    That the referee properly found that the services were not gratuitous and properly awarded compensation therefor;
    That evidence relative to the extent of the plaintiff’s own .business during the period in which he was conducting the defendant’s business was properly excluded, as the question was not whether the plaintiff was benefited or injured in his own business, but whether he had rendered services to the defendant for . which compensation should be made;
    That as the defendant had revoked the arbitration proceedings he was liable for its expenses;
    That, as the answer did not deny that the defendant had withdrawn from the submission, it was not erroneous to exclude a letter offered by the defendant which, as was claimed, contradicted the plaintiff’s testimony that he never withdrew from the arbitration.-
    Appeal by the defendant, Edward L. Goodsell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 6th day of Hay, 1895, upon the report of a referee.
    - The action is upon a quantum meruit for services rendered in the conduct of defendant’s business for a period of two months subsequent to October 30, 1890, and also for damages for a breach of an agreement to "arbitrate. The referee awarded to the plaintiff the sum of $2,500 as compensation for his services and $395 the expenses of the arbitration.
    The testimony shows that in the latter part of October, 1890, the defendant, becoming sick and ill, required some one to take charge of the financial part of his auction and commission business; and a request to take such charge, through one Millbank, a brother-in-law of the defendant, was made upon the plaintiff, who was engaged in 'a somewhat similar business, and to that extent familiar with it,- and who prior to that time had assisted the defendant. The plaintiff' having consented, defendant executed four powers of attorney to plaintiff, which were delivered to him by Millbank, and the plaintiff thereupon entered upon the employment. These powers of attorney were lodged with the different banks with which the defendant did business. Three of them gave him.the right to “sign, accept and indorse all checks, notes and drafts,” and the fourth, lodged with the Seaboard Bank, gave him a wider range of authority.
    While there is a dispute as to Millbank’s authority to make the request Or to employ the plaintiff, there is no question as to the execution of the powers of attorney, and that the plaintiff did in fact take complete charge and supervision of the business during the defendant’s sickness, and for two months, during a portion of which time there was financial stringency, he managed the finances, raised by loan and otherwise, and paid out large sums of money, amounting to nearly $800,000, in the conduct ,of the business. For these services compensation is claimed. A dispute as to the amount of such compensation having arisen, the parties undertook to arrange it by arbitration, but the defendant afterwards revoked the submission, incurring as claimed a liability, under section 2384 of the Code of Civil Procedure, for the expenses thereof.
    
      Rollin M. Morgan, for the appellant.
    
      E. M. Wight, for the respondent.
   O’Brien, J.:

The defendant assails the plaintiff’s right to any compensation for the services rendered, upon the grounds that he did not employ the plaintiff; that the services were voluntary ; that they were of no benefit, and that the relations between the parties did not raise an implied contract of employment.

It is true that there was no actual agreement for compensation, but the evidence fully sustains the referee’s conclusion that the services were neither voluntary nor gratuitous, but were rendered at the request of and were valuable to the defendant. As said in Smith v. L. I. R. R. Co. (102 N. Y. 192): “These circumstances ptima facie raised an implied obligation on the part of the defendant to make compensation, and in order to rebut the implication there should be clear evidence that the services were to be gratuitous. The burden was upon the defendant to establish this defense. It-is not claimed that there was any express agreement or understanding with the plaintiff that he was to serve without compensation.” ' Finding, as we do, that the conclusions of the referee upon the disputed questions of fact are supported by the evidence, this case in principle is controlling.

The contention that the services were unnecessary is remarkable in the face of the view entertained by the defendant himself which, induced him to execute in plaintiff’s favor the four powers of attorney. And the claim-that damage instead of benefit resulted from such services is shown by the referee to be equally - without merit.

As to the amount awarded, this, upon disputed testimony, was clearly within the province' of the referee, and, as it cannot be regarded as excessive, it should not be disturbed.

It is insisted that the referee erred in determining that the plaintiff did not render any material services before the execution and delivery of the powers-of attorney. But we fail to see how the defendant was injured by this, its only bearing being upon the question whether the services rendered before the powers of attorney were delivered (for which no compensation was claimed) were the same as those thereafter rendered. Equally harmless was the error into which it is claimed the referee fell in confusing the word “commissions” with the word “profits” and from this deducing the conclusion that the testimony was not accurate as to such profits. Undoubtedly the amount of- profits would have a bearing upon the question of compensation to be paid for the services rendered in making them, but for the reason already stated — that the amount awarded for such services, in any aspect to be taken of the testimony, was not excessive — the defendant, cannot legally complain.

This leaves but one or two rulings upon evidence which may be briefly noticed. The defendant sought to examine the plaintiff as to the amount of sales and earnings of his (plaintiffs) business during the period he was engaged in rendering the services. In refusing to allow such examination we think the referee was right for the reason that it was not a question of whether the plaintiff was benefited or injured in his own business, but whether he had performed services for the defendant which entitled him to compensation.

Upon the second cause of action there was no defense that the failure to arbitrate was the result of any act of the plaintiff’s. The answer denied nothing except as to the amount, thus leaving plaintiff to make proof of the sum expended and his damages connected with the arbitration. The referee was, therefore, right in refusing to permit the introduction of a letter which was offered, and which, it is claimed, contradicted the plaintiff’s testimony that he never withdrew from the arbitration. The counsel for the defendant asked for a letter from Mr. Goodsell to Mr. Wiley, and it would appear that that letter was produced, and the witness was then asked, What is this paper % ” to which he answered, A letter from Mr. Goodsell.” It will, therefore, be seen that there was some confusion at this point, because the counsel was speaking of a letter from Mr. Goodsell, but the exhibit itself shows that it was a letter purporting to be signed by Mr. Wiley. It does contain a statement that the plaintiff withdraws his “ acquiescence to the arbitration ; ” but the answer of the plaintiff that he had not withdrawn was given in response to a question of the defendant upon a collateral matter not at issue. Conceding, therefore, that the letter sought to be introduced was one signed by.the plaintiff, we think it was properly excluded.

Without commenting further upon the numerous exceptions and rulings, it' is sufficient to say that none of them is so serious as to. justify our interference with the judgment which, upon the facts, the referee has rightfully rendered in favor of the plaintiff.

The judgment should, therefore, be affirmed, with costs.

Yah Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  