47 Wis. 239 | Wis. | 1879
We think it sufficiently appears from the evidence, that in August, 1874, John C. J ohnson purchased of respondents certain steam machinery, for the sum of $1,709.20, paid a small part of it, and gave his notes for the balance, to become due in the months of November and December, 1874 and 1875, and in the months of January and November, 1876; and, to secure the same, executed to the respondents a chattel mortgage upon the whole or part of the machinery sold, and a mortgage upon certain real estate which he claimed to own. In the month of July, 1875, after the said John C. Johnson had made use of the machinery nearly a yea;’, and had paid only a small part of the amount so secured, and was in default of payments past due, and the respondents had ascertained that the said Johnson had no title to the lands mortgaged, they threatened, and took some steps, to take the machinery upon the chattel mortgage, and on the ground that it had been obtained by false pretenses.
To prevent the respondents from so doing, it was arranged between the said John C. Johnson, his brother Charles Johnson, the appellant, and the respondents, in effect that the balance unpaid upon the notes so given by John C. Johnson should be computed and ascertained, and that the said Charles Johnson, the appellant, should give his notes and mortgage to the respondents therefor, as the nominal purchaser of the machinery, for such amount. This arrangement was carried into effect, by the computation of said amount at the sum of $1,200, in the presence and with the knowledge and assent of John O. and Charles Johnson and the respondents, and such amount fully agreed upon; and by the said Charles Johnson,
In this view of the evidence, it is immaterial whether there was a warranty of the machinery in the first contract of purchase, or any damage to John 0. Johnson from the breach thereof, or not; for that contract of purchase was wholly superseded, if not rescinded, by such subsequent arrangement between the parties. But, if it were important to inquire as to the existence or breach of any such warranty, or as to the damages resulting therefrom to John 0. Johnson, in defense of this action, his use of the machinery for nearly a year, without claiming or insisting upon any such damages, and his assent to the computation of the balance due and the secürity given therefor, would be a full waiver and estoppel of such damages. Smith v. Armstrong et al., 24 Wis., 446; Webster v. Phænix Ins. Co., 36 Wis., 67; Gans v. St. Paul F. & M. Ins. Co., 43 Wis., 108; Locke v. Williamson et al., 40 Wis., 377; Morehouse et al. v. Comstock, 42 Wis., 626.
The findings of fact by the circuit court appear to be sustained by a clear preponderance of the evidence, and the conclusions of law thereon are correct, and warrant the judgment, if the rulings upon other matters are not erroneous; and these we will briefly consider in their order:
1. The exception to that part of the order of continuance at a previous term, making the terms of such continuance the payment of forty dollars by the appellant as the expenses of obtaining the attendance of a witness outside of the state, must be held to have been waived by its payment, and by receiving the benefit of the continuance granted upon such terms. Damp v. Town of Dane, 33 Wis., 430.
2. The taking of ex parte evidence by the respondents in respect to a part of the mortgaged premises, being the homestead of the appellant, and as to th.e situation of the remainder, with the view to so frame the judgment as to have such remainder first sold, would seem to be favorable only to the
' 3. The allowance of the fifty dollars solicitor’s fee named in the mortgage was not only lawful, but a proper exercise of judicial discretion. Pierce v. Kneeland, 16 Wis., 672.
4. The errors complained of in the taxation of the costs are mostly very indefinite, and by no means clear from the evidence furnished by the record.
The investigation and analysis of the items of a taxed bill of- costs, with the minute and technical knowledge of the subject so necessary and indispensable to make each item the subject of legal certainty and exact justice, impose upon this court a very difficult and vexatious duty in any case, and it is encouraging to know that such duty is not often imposed. We shall, however, endeavor to consider the several objections made with such care as their importance demands.
The item for arguing two motions, taxed at six dollars, was clearly erroneous. In the absence of any proof to the contrary, these motions must be presumed to have been such as are mentioned in section 41, ch. 133, R. S. 1858, as “ ordinary motions,” the taxable costs for which are sixty-two and a half cents each.
The items of drafting and copying eleven indorsements of papers, taxed at four dollars and sixty-seven cents, are nor specifically allowed by any statute; and we are not inclined to force a construction of any statute to sanction such a petty exaction.
The’ item for an abstract, taxed at five dollars, was not shown by any proof to be a fair charge; but we think it was shown by the affidavit of the appellant to have been excessive, and that the proper charge therefor should have been only two dollars and forty-five cents.
The items of sheriff’s fees for serving subpoenas were not shown by any proof to have been improper, and it must be
•The costs for witness fees, as taxed, were proved by the affidavit of the attorney of the respondents, and were not shown to be improper by any counter-proof, or to have been included in any former bill of costs paid, and were correctly taxed as to all of the witnesses, unless the charges for several days’ attendance of some of the witnesses, who were attorneys-at-law, were improper. The attorneys who were such witnesses were not shown to have been “ counsel in the cause,” and therefore they did not come within the exception of the statute; and the fact that they were in attendance upon the court in other business would not prevent them from receiving the fees of other witnesses, within the principle established in. the case of McHugh v. C. & N. W. R’y Co., 41 Wis., 79. The total excess of such taxed bill over the legal and proper costs is the sum of eleven dollars and ninety-seven cents ($11.97), which should be deducted from the costs in the judgment.
By the Court. — The judgment of the circuit court is affirmed except as to the costs therein, and as to such costs it is reversed, with directions to modify the same by deducting therefrom the sum of eleven dollars and ninety-seven cents. Neither party will recover any costs in this court, but the appellant will pay the costs of the clerk.
