Baroni v. Musick

STEPHENS, P. J.

Plaintiff’s complaint, based on the common counts, alleged a balance of $6,350 due his assignor, an attorney at law, for professional services rendered defendant, and the sum of $31.50 laid out and expended by said assignor, at defendant’s request, for costs of suit. A bill of particulars furnished defendant by plaintiff showed that the charges for legal services were based on fees allegedly agreed to be paid by defendant in six actions, viz.: one of $5,000, one of $1,000, a fee of $1,000 agreed to be paid for three separate cases, and a fee of $250 allegedly •agreed to be paid for the defense of an action against defendant. The jury returned a verdict of $5,000 in favor of plaintiff, upon which judgment was entered by the court. Defendant appeals.

Appellant urges that the “evidence received and the findings by the jury thereon” do not support the cause of action made by the pleadings.. In other words, the contention is that if the jury had found that fees in the sum of $7,250 and costs of $31.50, less payments of $900, as alleged in the complaint as exemplified by the bill of particulars, had been expressly agreed to be paid, the verdict should have been for the sum of $6,381.50, and that in consequence the jury must have impliedly found adversely to plaintiff’s contention of agreed fees. If the complaint alleged and the evi

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dence showed

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agreed fee of $7,250, we believe such contention would be good. The complaint and bill of particulars allege, however, and plaintiff's evidence shows, four separate fees aggregating such amount. The defendant admitted that he agreed to pay plaintiff a fee of $1,000 for his services in the three separate cases, but denied that there was any fee agreed upon in the other three cases. Under the issues raised by the pleadings and the evidence, the jury might well have found for the plaintiff on the admitted $1,000 fee and for the defendant on the remaining $1,000 fee and the costs advanced. In such case, with the credit of $900, plaintiff would have been entitled to a fee of $5,100, or $100 more than the amount of the verdict. The verdict returned was in the sum of $5,000, exclusive of all former payments.

The bill of particulars must be regarded as an amplification of the complaint, and as if it had been incorporated in the amended complaint.