Cusick v. Boyne

COOPER, J.

This action was brought for legal services rendered by plaintiff’s assignor, as attorney at law, for defendant, at her special instance and request, between the second day of January and the twelfth day of September, 1901.

The ease was tried with a jury, and a verdict rendered for plaintiff in the sum of nine hundred dollars.

Defendant made a motion for a new trial, which was denied, and she brings this appeal from the judgment and order denying her motion.

There is sufficient evidence to sustain the verdict, and no question is made in that regard. Defendant urges certain alleged errors which occurred during the trial, of which we will notice those deemed most plausible.

The complaint alleges that the legal services were performed at the special instance and request of defendant, and that such services were reasonably worth the sum of one thousand dollars. It is claimed that the defendant’s demurrer to the complaint should have been sustained because there is no allegation that defendant agreed to pay what the services were reasonably worth. If defendant’s contention is correct, it would introduce a new departure from the long-settled rules of pleading. It is never necessary to allege a promise where the law implies one. To illustrate, suppose the defendant made no promise, as such, but went to the attorney and asked him to perform services for her, and he did so at her request; that such services were of the reasonable value of one thousand dollars; is the attorney without a remedy because appellant did not say, “I will pay you”?

In all cases where one performs services for another at his instance and request the law implies a promise to pay.

When an attorney performs services for another at his instance and request, nothing being said as to payment, the attorney is entitled to recover the reasonable value of his services.

[646]

As a circumstance tending to show the value of the services, plaintiff proved the value of the real estate in controversy in the matter concerning which the attorney was employed, the monthly rental thereof, and that a life estate was secured to appellant, by way of compromise, as the result of the legal services. It is always competent, in a controversy as to the value of legal services, to prove the nature of the litigation and the amount involved. Plaintiff, under the objection of defendant, was allowed to prove by the witness Stearns, with . the aid of the tables of mortality in use in the United States, the average expectancy of life of a person sixty years of age, that being the age of defendant at the time the litigation was terminated. The objection was that the plaintiff did not. first prove that defendant was in a sound condition of health. The objection is without merit. The witness testified that the mortality tables are based on the average life of all persons at given ages without regard to the condition of their health. The law presumes that a person of sixty years of age is in the average condition of health and strength of other persons of that age. If for any reason the health of defendant was such that she would be taken out of the general rule, it was incumbent upon her to prove it; and besides, the matter was not vital, and was only in regard to a circumstance or fact tending to show the value of the legal services.