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03/07/58 IRA E. MEAGHER v. ALBERT C. KAVLI

March 7, 1958

IRA E. MEAGHER, JR., AND OTHERS, CO-PARTNERS D.B.A. MEAGHER, GEER, MARKHAM & ANDERSON,
v.
ALBERT C. KAVLI, INDIVIDUALLY AND D.B.A. KAVLI REALTY COMPANY, AND OTHERS



Action in the Hennepin County District Court wherein plaintiffs sought to recover attorneys' fees for services rendered, in which action they joined as defendants Albert C. Kavli, individually and d.b.a. Kavli Realty Company, Edward L. Kavli, individually and d.b.a. Kavli Realty Company, Albert C. Kavli and Edward L. Kavli, co-partners d.b.a. Kavli Realty Company, Edward L. Kavli d.b.a. Lake Shore Company, and Lake Shore Company, a corporation. The case was tried before Leslie L. Anderson, Judge, and a jury, and at the close of the evidence the court directed a verdict for plaintiffs for $1,738.75. Defendants appealed from an order denying their motion for a new trial.

Nelson, Justice.

SYLLABUS BY THE COURT

Pleading -- consistency of claims joined.

1. There is no requirement under the new rules, such as there was under the code, M.S.A. 1949, ยง 544.27, that the causes joined must be consistent. The new rules expressly provide that a party may state as many separate claims as he has regardless of consistency. Rule 8.05(2) of Rules of Civil Procedure.

Account stated -- recovery thereon -- requirements of pleading.

2. For a plaintiff to recover, as upon an account stated, upon written statements or accounts made out and rendered to defendant, he must declare them as such; and if in his complaint he sets out the original transactions, and not the account stated, as the grounds of his action, either party may prove what the original transactions were.

Waiver -- as fact question.

3. Waiver is ordinarily a question of fact for the jury. It is only where there is but one inference which can be drawn from the facts that the question of waiver becomes one of law for the court. However, the general rule seems to be that where different inferences may be drawn waiver must be resolved as a fact question by the jury.

Account stated -- defined -- distinguished from recovery under common count.

4. A plaintiff may under a common count recover on either an implied or an express contract. Whether the contract pleaded in plaintiffs' cause of action is an express or implied contract is a matter which is of necessity concerned with the original transactions. An account stated is something else. An account stated comes into being through an acknowledgment or an acquiescence in the existing condition of liability between the parties. If an account rendered is acquiesced in by the parties and the correctness of the statement is admitted, then the law will imply a promise to pay whatever balance is thus acknowledged to be owing and due, without further proof.

Account stated -- defined.

5. An account stated is an agreement that a statement of account between the parties is correct. The agreement may be implied as well as expressed, and it may be inferred where the statement is rendered by one party and acquiesced in by the other; but, where the creditor renders a statement of account and the debtor protests that it is incorrect, it is needless to say that there is no agreement and no account stated.

Account stated -- defined.

6. If a statement is furnished by one party, and there are certain objections within a reasonable time by the other party, then, of course, the evidence as to acquiescing in the account furnished by silence is out of the case.

Account stated -- defined.

7. There is no arbitrary rule of law which renders an omission to object in a given time equivalent to an actual agreement or consent to the correctness of the account rendered but it is merely competent evidence, subject to rebuttal by circumstances from which counterinferences may be drawn. The weight to be given to the inferences will vary with the circumstances. There can be no hard-and-fast rule.

Attorney and client -- compensation of attorney.

8. An attorney may recover for his services under a common count in general assumpsit, or recovery may be had based on an express contract for a stipulated fee if the terms thereof have been fully performed so that he becomes entitled to the fee. Under our new rules of civil procedure both may be asserted in the same complaint.

Attorney and client -- compensation of attorney -- existence of account stated -- sufficiency of evidence.

9. An attorney and his client may agree to an account rendered by the former for his services and thus state the account of the former. Due, however, to the peculiar relationship that exists between an attorney and his client and because an agreement between them is essentially in a classification peculiar to itself, it is required that opportunity be given the client to act with as full and candid information as his attorney can give him.

Attorney and client -- compensation of attorney -- existence of account stated -- sufficiency of evidence.

10. Taking into account the conflicts in the testimony and the contradictions disclosed by the record in the instant case, the finding that an account stated has been conclusively established as a matter of law does not find support. The instant case is not one where the determination of that question is dependent solely upon documentary evidence and undisputed testimony. Since there seems to be no dispute as to what the legal services rendered were, the question presented by the record is whether or not the status between the parties is one of account stated or one where the plaintiffs may recover on the basis of reasoanble services rendered.

Attorney and client -- compensation of attorney -- existence of account stated -- sufficiency of evidence.

11. Since there must be a new trial, a jury at another trial may, if the evidence permits, under the pleadings as amended, with proper instructions from the court, determine as between plaintiffs and defendants, if recovery is warranted, whether plaintiff shall be entitled to recover for legal services rendered on an account stated between them, or if an account stated fails of proof, shall in lieu thereof become entitled to recover the reasonable value on open account, according to the original transactions pursuant to plaintiffs' cause of action as first alleged in the original complaint.

The opinion of the court was delivered by: Nelson

This action arises out of an agreement to perform legal services in behalf of Albert C. Kavli and Edward L. Kavli, individually, in the defense of an action originally brought by Glen Dix against Harris Machinery Company, lessee, Clarence Peterson, its employee, A. C. Kavli, and E. L. Kavli, owner and lessor of premises involved.

The Dix case involved the alleged careless operation of an elevator in a warehouse in midway, St. Paul. Albert C. Kavli had no ownership or interest in the building. The case was tried before the District Court of Hennepin County and a verdict of $15,000 was rendered against defendants Harris Machinery Company, Clarence Peterson, and E. L. Kavli, who appealed to the state supreme court. This court rendered its decision of affirmance October 16, 1953. Dix v. Harris Machinery Co. 240 Minn. 218, 60 N.W.2d 628.

While other defendants have been named in the present action, the principal defendants appear to be Albert C. Kavli and Edward L. Kavli as individuals. Plaintiffs' claim for services includes preparation and trial of the Dix case before the district court and services rendered in the separate appeal of E. L. Kavli to this court. In the original complaint served, plaintiffs sued to recover the reasonable value for legal services rendered, and expenses incurred, substantially in the form of the old common count in an action of assumpsit regardless of any agreement as to value.

Defendants jointly interposed a denial to plaintiffs' original complaint admitting that the plaintiffs performed certain legal services in defense of the Dix case but alleging that only a small portion of said services were rendered by the plaintiff in behalf of defendant Albert C. Kavli. It was further denied that the services were of the agreed or of the reasonable value alleged by plaintiffs and that there was a balance due in the amount prayed for. On the day of the commencement of the trial, plaintiffs moved the court to amend the complaint by adding a second cause of action on an account stated. Defendants filed written objections and gave notice of motion, if ...


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