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Cooper v. Conklin

Appellate Division of the Supreme Court of New York, Second Department
Jun 17, 1921
197 App. Div. 205 (N.Y. App. Div. 1921)


June 17, 1921.

Achilles H. Kohn [ Silas H. Dayton with him on the brief], for the appellant.

Harold E. Lippincott, for the respondent.

The action is upon an account stated. The plaintiff's assignor was an attorney at law for the defendant in an action entitled Conklin v. Shonts. On the 27th day of April, 1920, he wrote to the defendant inclosing a bill for professional services, in the following words:

" April 27, 1920. " Conklin vs. Shonts "Roland R. Conklin "to "Arthur C. Hume, Dr. "Balance due for legal services, etc., in this action, to date ............................ $2,600 00 "Received payment."

It was competent for the jury to find, and we must assume that they did so find, that defendant paid no attention to the letter or bill for five months. On September 29, 1920, the plaintiff's assignor having assigned his claim to the plaintiff, this action was brought thereon, and the complaint declared upon an account stated. Judgment went for the plaintiff, and the defendant appeals.

It has been held that in cases where prices are not agreed upon, or where they are not fixed by the market, but depend solely upon the value of personal services to be determined on the principle of quantum meruit, the general rule relating to accounts stated does not necessarily prevail. ( Burlingame v. Shelmire, 35 N.Y. St. Repr. 161; 59 Hun, 615.) This proposition seems to rest for its support on the following expression found in the opinion of Williams v. Glenny ( 16 N.Y. 389): "But I do not think a claim for a round sum, where the subject of the demand is one which would naturally consist of many items, is in the nature of an account." There is authority, however, that an account stated may consist of a single item. ( Stein v. Stein, 140 App. Div. 306; Little v. McClain, 134 id. 197; Benjamin v. Levy, 176 N.Y. Supp. 454; 1 C.J. 682.) In the pending case, except for the disbursements which seem to be included in the account rendered in the letters "etc.," the claim is not one that presumably consists of a number of items. It is a claim for the value of services performed in a single action, which may properly be stated by a sum in gross, and there is no obligation upon an attorney to divide his charge and specify the amounts assigned to the several items of work in the same case. I think, therefore, that the account rendered is one which, so far as its form is concerned, may, by the acquiescence of the defendant, become an account stated. But there is an administrative rule of law growing out of the relations between plaintiff's assignor and the defendant, which prevents the affirmance of the judgment.

Contracts between an attorney and his client, which are favorable to the attorney and are made during the relationship between the parties, stand upon a different basis from ordinary contracts between persons who deal at arm's length. The provision of the Judiciary Law, section 474, to the effect that the compensation of the attorney is governed by agreement, express or implied, which is not restrained by law, applies only to contracts that are made before the services are entered into, and not to those made during the relationship of attorney and client. ( Whitehead v. Kennedy, 69 N.Y. 462.) The doctrine is stated by Mr. Justice LAUGHLIN in Boyd v. Daily ( 85 App. Div. 581) as follows: "The general rule is that as to contracts made between the attorney and client subsequent to the employment which are beneficial to the attorney, it is incumbent upon the latter to show that the provisions are fair and reasonable and were fully known and understood by the client." To the same effect are Whitehead v. Kennedy ( supra); Wood v. Downes (18 Ves. Jr. 119), and Brauer v. Lawrence ( 165 App. Div. 8). The rule is a just one and imposes no unreasonable burden upon the attorney. The underlying reason for the rule is that the relations between attorney and client are so confidential and the client relies so fully upon his attorney for the protection of his legal rights and is by the nature of their relations so subject to the advice of the attorney that in all such contracts the attorney cannot rely upon the face of the agreement itself, but is compelled by the law to show, in addition thereto, that the contract is fair and reasonable and that the client was fully informed of all the facts which enabled him to judge its fairness and reasonableness. No reason is perceived why this rule of law is not as applicable to a contract which is a result of the implied acceptance by the client of an account rendered by the attorney for the value of his legal services, as to any other contract between them, whether written or oral. When the bill was rendered by the plaintiff's assignor, the relation of attorney and client still existed between them as to this particular litigation, and was not terminated until some twenty days thereafter. It also appears that the attorney represented the defendant in other matters pending after the rendition of the bill, the claim for compensation for which was expressly reserved in the letter which accompanied the bill rendered.

Under these circumstances it was incumbent upon the attorney to prove not only the rendition of the bill and the defendant's acquiescence therein, but also to produce evidence from which the jury might judge whether the compensation was fair and reasonable for the services rendered and whether the defendant had such full knowledge of the nature and extent of the services rendered him as to be capable of exercising a fair judgment as to the reasonableness of the bill. This evidence was not introduced by the plaintiff, and the judgment, therefore, should be reversed and a new trial granted, with costs to abide the event, and the finding of fact implied in the verdict of the jury, that there was an account stated in the case, should be disapproved and reversed.

Judgment and order reversed and a new trial granted, with cost to abide the event.


Judgment and order reversed and new trial granted, costs to abide the event.

Summaries of

Cooper v. Conklin

Appellate Division of the Supreme Court of New York, Second Department
Jun 17, 1921
197 App. Div. 205 (N.Y. App. Div. 1921)
Case details for

Cooper v. Conklin

Case Details

Full title:JOHN H. COOPER, Respondent, v . ROLAND R. CONKLIN, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 17, 1921


197 App. Div. 205 (N.Y. App. Div. 1921)

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