Contract, What constitutes. Attorney at Law.
At the hearing by a judge of a district court of an action against a woman for professional services in representing the defendant, a contestant at the trial of issues relating to the proof of a will, the judge disbelieved testimony of the plaintiff as to his original interview with the defendant but found in substance upon evidence warranting the finding that, at the request, originally of a son of the defendant and, after the trial had gone on for a day, of the defendant and with her acquiescence and in her presence, he conducted the trial in her behalf; and found for the plaintiff. Held, that (1) The judge was not bound to find action through an agent, nor to give rulings applicable to a relation of agency; (2) Even if the plaintiff's testimony were not believed, in the circumstances the final conclusions were not as a matter of law erroneous. The fact that, when first interviewed by the defendant's son, the plaintiff had entered his appearance in the contest for the defendant and others, was immaterial.
WAIT, J.
This is an action on an account annexed for professional services rendered in a will contest. The trial judge, on contradictory evidence, found that the plaintiff rendered valuable service to the defendant in the trial, expecting to be paid by her a reasonable compensation for so doing; that the defendant, knowing the service was being rendered to her in such expectation, accepted and permitted it; and that, during part of the period in which the services for which compensation was sought were rendered, the defendant was competent to contract. He found for the plaintiff, and gave as damages reasonable compensation for the services performed while the defendant was competent to contract.
In this there is no error of law. Lowe v. Pimental, 115 Mass. 44. Sawyer v. Pawners' Bank, 6 Allen, 207, 209. The requests of the defendant were dealt with properly in view of the findings of fact. The judge was not bound to find action through an agent, nor to give rulings applicable to a relation of agency. The plaintiff had no standing for application to the Probate Court for an order for compensation. Conley v. Fenelon, 266 Mass. 340. The plaintiff's testimony with regard to a contract with the defendant, if disproved, did not preclude the finding actually made and prevent recovery. The defendant has no proper ground of complaint that she was not prepared for the finding made. It was implicit in the evidence before the court. She had opportunity to meet it. The form and time of entry of appearance was immaterial.
The order of the Appellate Division dismissing the report was correct and is
Affirmed.