Perry v. Schwartz

BURKE, P. J.

Plaintiff Perry sued defendant Schwartz for attorney’s fees for professional services rendered by plaintiff’s assignor, Attorney Lawrence Lee Light. The court, sitting without a jury, first determined the issue presented by an affirmative defense of defendant that plaintiff’s assignor was negligent in his representation of defendant in connection with the proceedings wherein such professional services were rendered. The court found that there was no negligence nor improper representation on the part of plaintiff’s assignor. Judgment on the affirmative defense was entered in favor of plaintiff. The other issues presented by the pleadings were tried before a jury. Plaintiff’s complaint asserted two causes of action: one, for services rendered on an open account; the other, on an account stated. The jury returned a verdict in favor of plaintiff on which judgment was entered and from which defendant appeals.

On appeal defendant contends prejudicial error was committed by the court in giving a special interrogatory to the jury and in refusing an instruction requested by defendant; further, that where objections are raised by a debtor as to the amount of the indebtedness, a cause of action based on an account stated will not lie.

The evidence established that plaintiff’s assignor rendered legal services for defendant from June 1, 1959, to May 12, 1960, in connection with litigation between defendant and his brother relating to a partnership between them and seeking, in two superior court actions, dissolution, accounting and receivership.

The special interrogatory submitted to the jury, to which defendant objects, was as follows:

“Did the Defendant, Fred Schwartz, on June 10, 1960, promise and agree to pay Mr. Lawrence Light [plaintiff’s assignor] the balance as shown on his statement amounting to $4,110.25?”

The interrogatory was answered, “Yes,” by the jury.

Defendant offers no authority to support his objection to such interrogatory. Section 625 of the Code of Civil Procedure specifically provides: “In all cases the court may direct the jury to find a special verdict in writing, upon all, or any of

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