That under our law the Superior Court, in the then state of the pleadings, was empowered to send this case to an auditor is too plain for discussion or the citation of authorities.
The ruling requested at the trial was properly refused. The declaration alleged in substance that the defendants received for the use of the plaintiff $10,873.58, that of this there remained in the hands of the defendants $2,500, of which they were entitled to hold $1,000 as the “ amount that plaintiff owed them for services,” leaving a balance of $1,500 in their hands as money due the plaintiff. The answer set up among other defenses that the sum of $10,873.58 was received by the defendants from one Lancy, as the result of a suit prosecuted by them, as the plaintiff’s attorneys, against him; “ that thereafter the plaintiff instructed the defendants to retain from said amount . . . compensation for the services rendered to the plaintiff as aforesaid; that the defendants did retain from the amount so collected from said Lancy, as fair and reasonable compensation for the services rendered as aforesaid, the sum of $2,500, and paid over to the plaintiff the balance.”
It is to be observed that the answer nowhere states that the *116plaintiff assented to the defendants’ view that $2,500 was a reasonable sum. It says simply that the defendants had retained $2,500 as their own view of a reasonable sum. It still leaves open the question of a reasonable sum to be decided by the jury. Upon that point it alleges no agreement of the plaintiff as to the amount. Even if, however, it be regarded as a plea of accord and satisfaction, still the request was properly refused. Even if it be assumed as true that an accord and satisfaction would have constituted a settlement between the parties and they would have been bound by it both as to the original action and the claim in set-off, and that the ruling requested was correct so far as it stated such a proposition, and that if it stopped there it should have been given, it is to be observed that it did not stop there. It further asked that whether the plea of accord and satisfaction was true or not the defendants having pleaded it “ cannot now ask for anything in addition to what they kept.”
This position is untenable. If there was no settlement in fact, then the whole question of the reasonableness of the fee was before the jury, at least in the action in set-off. The ruling being incorrect in this respect was properly refused.
The plaintiff in his brief complains of the manner in which the case was finally submitted to the jury by the presiding judge. But inasmuch as he consented to that course he has no good ground for complaint. The verdict, whether irregular or irresponsive to the pleadings, was in the form in which he consented it should be, and was such as the court, with the consent of the parties, could properly receive.
jExceptions overruled.