The H. M. Whitney Company, Respondent, v. Theodore Stevenson, Appellant

The H. M. Whitney Company, Respondent, v. Theodore Stevenson, Appellant. Action for services—when each party sets v/p . a special agreement as to the sum ■ agreed to be paid therefor, either party may show their actual value.- Where one party to an action seeks to recover for services and sets up á special agreement as to the .sum to he paid therefor; which is-controverted by ■the other, who also alleges a special agreement, and the testimony is conflicting upon this issue, it is proper for either-party to prove the value of the services, both as bearing upon the issue raised and the probability that one or the other agreement was made, and because, in order to. settle the controversy, the jury or trial court may find that the minds of the parties did not meet upon any special agreement. • Appeal by the defendant, Theodore Stevenson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 17th day of August, 1896, upon the report of a referee.' The. plaintiff brought its action upon several promissory notes' signed by the defendant, payable to its order, aggregating the sum of $1,909.01.. •■ ■ . - The defendant in its answer, after denying any indebtedness to the plaintiff upon said notes, and alleging that such notes were given without any consideration as accommodation notes for the convenience of the. plaintiff, further alleged that the plaintiff, being in neéd ■ of a.large sum of money,, employed the defendant to raise for it the sum of $8,000, and that in consideration, of his Services to the plaintiff in raising said sum of money, and having its promissory notes , discounted for and during the term of one -year, and'for services, expenses and disbursements in' procuring such amount of' money to. be raised upon credit, the plaintiff agreed to pay to him the sum of $2,000, which amount he asserts , as a counterclaim to any indebtedness that the. jilaintiff lias against him. ■ The plaintiff in its reply, after denying its indebtednéss to the defendant in the sum of $2,000, and denying that it' ever employed him to raise the sum of $8,000, or that it ever agreed to pay him the sum' of $2,000 for his services in procuring the discount of its note or notes> or in obtaining credit or raising money for it, alleges that the defendant with others indorsed certain paper of the plaintiff under an agreement that the defendant should receive $10 per month for indorsing such paper, in the aggregate amounting to about $6,000, and that said agreement was continued for about two years, and that plaintiff has" fully paid the defendant the full amount stipulated. There was a sharp contest as to what the true nature of the agreement between the plaintiff and the defendant was, and the referee found “ That the defendant has no offset or counterclaim to said notes, and that the plaintiff, nor its officers or agents, never agreed or promised to pay to the defendant any sum for endorsing its notes or aiding it to raise money in any other way, except the sum of ten dollars per month for a limited period, all of which sum was paid before the commencement of this action.” Upon the trial the defendant, after giving evidence of the indorsement of the plaintiff’s notes and of his services in procuring their discount, offered proof of the value of the services so rendered by him. Evidence of this character was ruled out by the referee, and his rulings in that respect are sought to be sustained upon this appeal upon the ground that, the defendant having alleged and given evidence of an agreement for a specific sum, it was immaterial and incompetent for him to prove the value of the services rendered by him; that he must stand or fall by the agreement alleged and testified to by hip. Thomas E. Qourtney, for the appellant. Horace L. Bronson, for the respondent. [MAJORITY — Herrick, J.:] Herrick, J.: I am unable to distinguish the case before us from that of Barney v. Fuller (133 N. Y. 605). The syllabus of that case so fully and yet succinctly states the rule in such cases that I use it here instead of attempting to set forth in my own language the rule, established by that case. “ Where one party to an action seeks to recover for services and sets up a special agreement as to the sum to be paid therefor, which is controverted by the other, who also alleges a special agreement, and the testimony is conflicting upon this issue, it is proper for either party to prove the value of the services, both as bearing upon the issue raised and the probability that one or the other agreement was made, and because, in order to settle the controversy, the jury or. trial court may find'that the minds of the parties did not meet upon any special agreement.” For the error, therefore, in rejecting evidence of the value of the services alleged to have been rendered by the defendant to the plaintiff, the judgment should be reversed and a new trial granted. All concurred. Judgment reversed, referee discharged and a new trial granted, costs to abide the event.