ASSUMPSIT for attorney's fees. Narr. First count laying the indebtedness to the testator, and a promise to the executors. Second count for interest. Pleas, non assumpsit; payment; discount and the act of limitation.
The plaintiffs relied on the following letter from defendant dated the 28th of November, 1839, as taking the case out of the act of limitation. (1 Harr. Rep. 207.)
Dear Sirs, — Your letter of the 20th instant has come to hand, and in answer, I shall have some leisure in the, course of next week, which time I will come up to New Castle to see you about the claim which the late judge Black has against me. I hope when we come to talk the matters over, we will be able to settle the business satisfactory to both parties.
PHILIP REYBOLD.
It was objected that this letter was not admissible under the pleadings, there being no count on a promise to the testator in his lifetime. It was argued that unless the plaintiff could show a promise to Mr. Black in his lifetime, he shows no cause of action ever existing; and though there was a count laying a promise to the executors, such a promise was without consideration, and could not be the ground of" action. All the forms of pleading in such cases, where it is intended *Page 529 to rely on a promise to the executor, first count upon an indebtedness and promise to the deceased: and then, in another count, alledge the indebtedness to the deceased, with a promise to the executor.
Clayton, for plaintiff. — It is well settled that when you declare for a debt due to the intestate, and seek to recover on a promise to the executor, the pleading must alledge the debt due the intestate, and a promise to the executor. It has been so decided in our Court of Appeals. (1 Harr. Rep. 207; 3 ib. 286.)
The Court. — Each count must stand or fall by itself. It can, therefore, not be necessary to lay any promise to the testator, as a foundation for a promise to the executors. The indebtedness must he laid to the testator, with a promise to the executor, as it is in this case. If plaintiffs had declared on an indebtedness and promise to the testator, and then replied, to a plea of the statute, the promise to the executors, it would have been a departure in the pleading, and demurrable. Letter admitted in evidence.
The plaintiffs then proved a payment to the prothonotary for them of one of the fees charged in this account, within, three years; and relied on the letter as taking the case out of the statute of limitation; as "air acknowledgment of a subsisting demand." (1Harr. Rep. 206, Newlin vs. Duncan.)
Wm. H. Rogers, contra, contended that there must be an express admission of the bebt, without qualification, to remove the bar of the statute. (1 Law Lib. 64; 1 Peters' Dig. 33; 2 Saund. Pl. Ev. 157.) The legal fees of an attorney are fixed by law; the compensation for services as counsel is to be reasonable in the discretion of the jury. Both are recoverable in an action at law, and are properly the subjects of charge in a book account. The evidence of professional men is the best on this subject, for they best know the extent of the labor performed.
The defence is the act of limitation, and a letter from the defendant is relied upon as containing the acknowledgment of a subsisting demand, and taking the case out of the act of limitation. The rule on this subject was laid down by the Court of Appeals, in, the caseNewlin vs. Duncan, that an acknowledgment of asubsisting demand, or any recognition of an existing debt, is evidence of a promise to pay it, sufficient to take a case out of the act of limitation. The naked acknowledgment of a subsisting demand, without an express promise to pay it, is sufficient. But this must be an actual recognition *Page 530 of the debt as an existing debt. The question then for the jury is whethere this letter does contain an acknowledgment of a subsisting' debt.
As to the interest. Interest is allowed in general on the ground of contract, or the usage of trade: where a promise to pay interest is implied from such usage or from other circumstances. (2 B. C. 349; Roscoe 233.) In one case it was said that "however the debt is contracted, if it has been wrongfully withheld by the defendant, after the plaintiff has endeavored to obtain payment of it, the jury may give interest in the shape of damages for the unjust detention of the debt." (Roscoe 234; 3Bingh. 259.) In England it seems that interest is not recoverable on money due for work and labor. (1 H. Blac. 303.) But in this country it has frequently been held otherwise. (Chit, onCont. 195-6, note; 6 Binn. 162.) And where there is no usage; no precise time of payment fixed; no account rendered, or demand made; it is not usual for the court to direct interest to be given; but to leave it to the jury, under all the circumstances of the case, to give or refuse damages for the detention of the debt. (12Serg. Rawle 393.) Where damages for the detention are given, the legal rate of interest is a proper measure of the damages. (1 Harr. Rep. 318.)
Verdict for plaintiffs for full amount of the claim and interest.