193 Mass. 540

November 23, 1906 - January 3, 1907

Suffolk County


Attorney at Law.

In an action for services as an attorney at law, where an auditor has found that certain sums of money received by the plaintiff properly were credited by him as retainers and the auditor's report shows that the payments were demanded as retainers and were sent by the defendant to the plaintiff as retainers, the inference is warranted that the amounts of these retainers were agreed upon between the parties.

CONTRACT for $1,300 and interest for services as an attorney at law. Writ dated June 2, 1904.

The case was before this court at a previous stage on exceptions

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which were sustained by a decision reported in 191 Mass. 333.

The auditor having filed a supplemental report, as mentioned below in the opinion, the following agreement was made by the parties:

"In the above entitled action, it is hereby agreed that the reports of the auditor filed in said action, so far as any facts therein stated are concerned, be taken as a statement of agreed facts, and that, if the court is of the opinion that such agreed facts warrant the conclusion reached by the auditor in his last report, the judgment shall follow the auditor's finding in said last report; otherwise such finding shall be reduced by the sum of four hundred dollars."

By the facts as thus agreed it appeared that the plaintiff was retained by the defendant to render the services mentioned in his declaration; that he received the three retainers mentioned in the first three counts, amounting in all to $800; that they were asked for and paid as retainers, and "agreed upon by the parties" as such; that the plaintiff rendered services which reasonably were worth $1,350, of which he received $250 on account and no more, leaving a balance of $1,100; that a demand was made on February 5, 1904, upon the defendant for payment of $750 of the amount then due, and that no payment on account of the balance ever was made.

In his last report the auditor found that the plaintiff was entitled to recover a balance of $1,100, with interest on $750 thereof from February 5, 1904, and interest on the remaining $350 from the date of the writ.

In the Superior Court Bond, J. on the agreed facts ordered judgment for the plaintiff in the sum of $1,251.02; and the defendant appealed.

R. K. Dickerman, for the defendant, submitted a brief.

J. S. Patton, for the plaintiff.

KNOWLTON, C. J. Since the decision reported in 191 Mass. 333, this case has been recommitted to the auditor, and his supplemental report has been filed. The case now comes before us on an appeal from the judgment of the Superior Court, which presents only the question whether the facts stated in the reports of the auditor warrant the conclusion reached by him in his last report.

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We are of opinion that they do. In those parts of the account in which he finds that sums received by the plaintiff were properly credited as retainers, the facts reported show that they were demanded as retainers and sent by the defendant as retainers. The inference fairly follows that the amounts of these retainers were agreed upon between the parties.

The findings as to the value of the plaintiff's services show no error of law.

Judgment affirmed.