#### Jose de Carricarti, Respondent, *v.*Jose Garcia Blanco, Appellant.

(Argued March 20, 1890;

decided April 22, 1890.)

A claim for services rendered, resting on a *quantum meruit,*does not draw interest, until by demand made after the close of the services, the debtor is put in default.'

Where, therefore, in an action for services rendered prior to 1880, it appeared that plaintiff, on December 81, 1882, mailed to defendant an account, containing charges for the services and credits for money paid and with it a demand for payment of the balance, *held,*that plaintiff was only entitled to interest from the time of such demand.

Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 15, 1888, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.

This action was brought to recover a balance alleged to be due for services rendered and performed by plaintiff.

The material facts are stated in the opinion.

*J. Warren Greene*for appellant.

Assuming that the referee was right in holding that the plaintiff was entitled to. recover, at all upon a *quamturn meruit*and rendered services of the value of $4,100, it was error, (1) to allow interest on that sum from- January 1,- 1880 •, and (2) to refuse to credit the defendant with his proportion of the $300 a month received by the plaintiff from the general funds of the estate. *(Mansfield*v. *N. Y. C. & H. R. R. R. Co.,*114 N. Y. 331; *Smith*v. *Velie,*60 id. 106; *De Witt*v. *De Witt,*16 Hun, 258.) The referee erred in directing judgment in favor of the plaintiff for any sum whatever, except the amount of $100 for the so-called partition of the real estate, this being the defendant’s proportionate share of the value of that service as found by the referee. *(Spring*v. *A. C. Co.,*24 Hun, 175.) Even in the view of the case that was taken by the referee, namely, that the respondent was entitled to recover as upon a promise *231by the appellant to pay the reasonable value for all his services, the finding as to value was unwarranted by the evidence. *(Mercur*v. *Vose,*67 N. Y. 56; *Clark*v. *Baird,*10 id. 183-196; *Judson*v. Easton, 58 id. 664; *Terhenning*v. *Ins. Co.,*43 id. 279-282; *Bidel*v. *R. R. Co.,*44 id. 367; *Jarvis*v. *Farman,*25 Hun, 391; *De Witt*v. *De Witt,*46 id. 258; *Payne*v. *Hodge,*7 id. 612.)

*Emmet R. Olcott*for respondent.

The defense of the Statute of Limitations set up in the answer is untenable here. The actions are governed by the law of Spain as to limitations, and the limit under that is ten years. (Code of Spain, chap. 3,, § 2558.) The expression of willingness to pay plaintiff’s claim and to compensate the plaintiff for future services, upon which the plaintiff relied when he again took charge of the affairs of these defendants, and continued to act as their representative to the end of the business constitute a valid and binding obligation, based upon sufficient consideration to support a recovery not only for what he did thereafter, but for what he had previously done. *(Marie*v. *Garretson,*83 N. Y. 14; *Sands*v. *Crooke,*45 id. 564; *Ross*v. *Hardin,*79 id. 90; *Gallaher*v. *Voight,*8 Hun, 87; *Woodward*v. *Bigbee,*2 id. 128; *Williams*v. *Hutchinson,*3 N. Y. 318; *Moore*v. *Moore,*3 Abb. Ct. App. Dec. 312; *Roberts*v. *Swift,*1 Yates, 209; Story on Agency, §§ 326, 327; 1 Bell’s Comm. 386, § 409; *Bryant*v. *Flight,*5 M. & W. 114; *Bird*y. *McCaheg,*61 C. L. 707; *Van Arman*v. *Byington,*38 Ill. 443.) The rate of compensation is to be ascertained from what is usually paid in like cases. *(Lindan*v. *Galland,*8 Daly, 508; Story on Agency, § 327.) The defendant Lastres offered to pay plaintiff $8,500 in addition to the $1,064 stated to be in his hands, making an aggregate of $9,564. The conversation in which such offer ivas made, as well as the statement by her, that such services were of great value, were fully admissible as distinct facts. *(Bartlett*v. *Tarbox,*1 Abb. Ct. App. Dec. 120; *Jones*v. *Sparks,*2 N. Y. S. R. 139; 2 J. & S. 218; *Harland*v. *Lilienthal,*53 N. Y. 438; *Carpels*v. *Rosenbaum,*1 N. Y. S. *232R. 30.) Defendants claim that interest was improperly allowed; if error was committed in this respect, the defendant has not made the proper exception to now take advantage of it. *(Graham*v. *Chrystal,*2 Abb. Ct. App. Dec. 263.) The allowance of interest made by the referee was correct and should not be disturbed. ( *Van Rensselaer*v. *Jewett,*2 N. Y. 135; *White*v. *Miller,*78 id. 396; *Lush*v. *Druse,*4 Wend. 313; *Van Rensselaer*v. *Jones,*2 Barb. 643; *Dana*v. *Fiedler,*12 N. Y. 40; *Mygatt*v. *Wilcox,*45 id. 306; *Jackson*v. *N. Y. C. R. R. Co.,*2 T. & C. 653.)

Gray, J.

We think all of the questions raised by this appeal were properly disposed of in the courts below, except as to the allowance of interest upon the plaintiff’s claim. The action was brought to recover the reasonable value of the plaintiff’s services, rendered to the defendant in relation to his interests in the estate of one Bartolomé Blanco, deceased intestate; and of whom defendant was an heir and one of the next of kin. These interests the plaintiff continued to represent from some time in the year 1876, until the end of the yeai 1879. The referee allowed him interest from January 1,1880, upon the sum which he found to be the value of his services. To his- conclusion of -law that the plaintiff was entitled to interest from that time, the defendant duly excepted, and now insists upon the error of such a conclusion. Why the referee decided in that respect as he did does not appear, and I am at a loss to find good ground in support of his decision.

It must be conceded that this question of the allowance of interest is not one which may be said to be free from difficulty, when considered in relation to unliquidated demands. In *White*v. *Miller*(78 N. Y. 393), Earl, J., had occasion to review some of the decided cases, in connection with an allowance of interest upon a recovery of damages for a breach of warranty in a sale of cabbage seed. He-said, as the result of his consideration of the cases cited by him of actions to recover for work, labor and materials, or for balance of account for money and professional services, that where an account for *233services, or for goods sold and delivered, which has become due and is payable in money, although not strictly liquidated, is presented to the debtor and payment demanded, the debtor is put in default and interest is set running. In speaking of the cases of *McCollum*v. *Seward*(62 N. Y. 316) and *Mercer*v. *Vose*(67 id. 56), where interest was allowed on unliquidated claims for services from the commencement of the action, Judge Earl says, in his opinion in *White*v. *Miller : “*If, in each of those two cases, an account had been made and presented to the debtor and payment demanded, it is probable that the court would have sustained an allowance of interest from such demand.” I think the rule thus intimated by the learned judge in that case is a sound one and commends itself to our judgment in such a case as this. Here the claim for compensation for services was not only unliquidated, but the legal right of the plaintiif to recover anything for those services was contested by the defendant. The amount was absolutely uncertain which he should have, if he was entitled to anything, and the demand in his complaint rested on *quantum meruit.*Hence, I think it cannot be said that the defendant was in default toward the plaintiif in the discharge of any indebtedness, until, at least, the plaintiif had made a demand upon him, after the close of his services and in such wise as to charge him with notice of his deficiency. How, such a demand was made in the shape of an account, showing, on one side, payments and charges for services, and, on the other, credits of moneys received. A balance thus appeared, of which payment was demanded in the letter inclosing the account. This account and letter were dated December 31, 1882. I think then was the time when the defendant may be said to have been put in default, and that no earlier date could be fixed upon, consistently with the authorities and with the principles upon which interest is ever allowed.

The judgment should be reversed and a new trial ordered, unless the plaintiff consent to reduce his judgment by deducting and striking therefrom three years’ interest upon the sum *234of $3,568, found by the referee as the value of his services; in which event the judgment, as thus modified, must be affirmed, without costs to either party as against the other, upon the appeal to the General Term and to this court.-

All concur.

Judgment accordingly.