Action to recover of defendants $548.10. The petition alleges that the defendants received for plaintiff the sum of $5,365, and paid over to him only $4,816.90, and refuse to pay the balance. The defendants do not deny the receipt of tbe money as alleged, but aver that they have fully paid over and accounted for the same. There ivas a trial by jury, and verdict and judgment were rendered for tbe jilaintiff for $264.87. The defendants appeal.
Decided 1879-10-22
Adams, J.
¶11. Services: lien of attorneys: burden of proof. We infer that the defendants were allowed to introduce evidence to the effect that they performed services and incurred expenses in collecting the money received by them for plaintiff. No issue of that kind was tendered, and no evidence of any kind is set out in the abstract. But the court gave an instruction in these words: “The burthen is on the defendants to establish by a fair preponderance of the evidence that the services rendered by them and expenses incurred by them in tbe transaction of the business were reasonably worth tlie amount of money retained by them. If you find that tbeir services and expenses were reasonably worth tbe amount retained by them, your verdict should be for tbe defendants.” The defendants claim that tlie court erred in charging the jury as to the burden of proof.
¶2It is conceded by tlie appellants that the case ivas tried upon an issue not made in the pleadings, bat they insist that they were entitled to a correct instruction upon the issue upon which the'case was tried, and that the instruction is incorrect, because the defendants had a lien for their fees, and were entitled to retain the money until the lieu was discharged.
¶3It appears to us, however, that they had no lien unless they are attorneys, and if they are that they are entitled to retain only enough to pay them what their services were worth. If the defendants seek to hold tlie balance in their bands as compensation for legal services, we think it was for them to aver and prove the services and their value.
