Blake v. Andrews

This proceeding was the result of a claim for professional services rendered to the deceased by the appellant as a lawyer between the 16th of September, 1886, and the 9th of December, in that year. The appellant is a barrister and attorney in active practice in the city of Toronto, Canada. Previous to 1880 he seems to have acted as counsel for the decedent. He retired from active practice from 1880 to 1886, resuming in January of the latter year. The decedent was at that time a resident of Hew York, and in a very precarious state of health, which continued, and from which he never recovered. In September, 1886, the decedent addressed him a letter, in consequence of which, it is asserted, he came to Hew York, saw the decedent, and remained in Hew York from September until December, visiting the decedent, who was confined to his house, almost daily. The letter began: “It is a very long time since you sent me word you intended coming to see me, but you did not come;” and further on: “Is there any chance of your coming this way? I should like to see you. I have much to say to you, and want you to do something for me I do not care to mention here. I feel I shall never be able to leave Hew York.” The services rendered were what may be designated as “semi-professional,” consisting, chiefly, of making inquiries as to the value of certain stocks and bonds, and doing some writing; but what the writing related to does not appear. The referee selected for the necessary investigation, in a very careful opinion disposes of the claim adversely to the appellant; and it may be that it is not necessary to do more than refer to that -opinion, in consequence of its elaborate and thorough presentation of the controversy. But, nevertheless, some observations in addition will be made.

The services, as.already mentioned, were semi-professional, and are such as could have been rendered by a person other than a barrister, for the reason that the value of stocks and bonds is generally determined by the quotations appearing in the daily newspapers. The value of such services is not shown by evidence distinctly relating thereto. Tire value of professional services, eo nomine, appears to have been given before the referee; but they are not conclusive, and perhaps of no service in this case, for the reason that they relate entirely to professional services, and not to those semi-professional services-rendered in this case. ' If a lawyer gives his whole time, absenting himself from his place of abode, to matters not professional, he should establish by competent evidence the value of such services. Here, from the character of the letter, and the character of the relations existing between the decedent and the appellant, there would appear to have been a mere companionship existing between them, resting more upon old friendship than otherwise; and this view seems to be sustained by the fact that although the death of the decedent occurred on the 20th of March, 1888, the appellant, by his own statement, never saw the decedent after December, 1886, and never presented to him a bill for the alleged services. For these reasons, and those stated in the opinion of the referee, the order should be affirmed, with $10 costs and disbursements.

Van Brunt, J., concurs.

Whether anything should be allowed the claimant was wholly a question of fact, to be determined by the referee. The evidence was in no sense conclusive either way; and it was for him to decide which view of it should be adopted. He has considered that the mostprobable which is adverse to the claimant; and the law requires his action to be sustained in the disposition of the appeal. The judgment, therefore, should be affirmed.