The following opinion was filed February 24, 1914:
A number of exceptions to rulings upon evidence are raised and argued in appellant’s brief. It must be sufficient to say with regard to these alleged errors that we have examined them and do not consider them of sufficient importance to justify their treatment in detail. If there was error in any of them, it seems quite certain that it was nonprejudieial. The real contention on the merits of the caso is that the charge was misleading in that it gave the jury the impression that plaintiff claimed there was an express contract of employment and that it was necessary in order to justify a recovery that an express contract be proven; whereas as matter of fact the plaintiff only sought to recover on the ground that he had rendered valuable services to the defendant which were accepted by him, and for which the law will' imply a promise to pay their reasonable value.
We do not regard this contention as sound. The plaintiff in fact made both claims. Ilis complaint charged services of the reasonable value of $10,000 performed for the defendant “at his special instance and request.” Under this complaint there could doubtless be a recovery upon either theory. An express request by the defendant or his duly authorized agent might be proven, or the rendition of the services with the knowledge of the defendant and their acceptance by him, thus raising the implied promise, might also be proven. As mat
This evidence of agency on the part of Keating .and personal conversations between defendant and' plaintiff was followed by considerable evidence on the .part of the plaintiff showing the advice given by him from time to time to Mr. Keating as to the manner of drilling, the depth of the holes, and generally what was best to- be done, and this evidence was received by the court plainly on the theory that there had been prima facie proof made of request'on the part of the defendant through the medium of Keating as his agent. Of course, it also tended to prove knowledge, but there can be no doubt that it was offered and received with the idea of proving request, and so we think the court was entirely right in submitting to the jury first the question whether Keating was authorized by the defendant to employ the plaintiff on his behalf, and, if so, whether he did employ him. That the plaintiff considered this question as a question in the case at the time of the trial is very evident from the following instructions which he submitted to the court:
“You are further instructed that if you find from the evidence that Thomas Keating was the agent of the defendant in relation to the handling, exploring, developing, and leasing of the Healy property, Keating’s authority included whatever was necessary to effect the main purpose of the agency including the employment of a subagent, and the defendant is bound by such employment even though not expressly authorized by him.
“You are further instructed that if, as the agent of defendant, Thomas Keating employed plaintiff to perform services which were beneficial to defendant in respect to the property in question, the defendant is liable to the plaintiff for the reasonable value of such services whether or not Keating in*47 formed plaintiff that tbe services were in part for the benefit of defendant.”
Perhaps it would have been better not to have used the words “contract of service” and “employment” so frequently as they were used in the charge, hut in view of the very full and comprehensive instructions given later in the charge on the subject of a recovery in the absence of any express employment or contract, we are convinced that there could be no misleading of the jury thereby.
There is doubtless one error in the charge, namely, in the sentence which instructs the jury that in order to find that the plaintiff was employed to render service in the capacity of a mining expert the evidence should be clear and convincing. This cannot be approved. In a civil case the jury are required to be convinced or satisfied of the existence of a fact by the preponderance of the evidence (Anderson v. Chicago B. Co. 127 Wis. 273, 106 N. W. 1077), except that in case of certain issues, including fraud, it is held that the affirmative can only be found upon evidence that is clear and satisfactory. Bowe v. Gage, 127 Wis. 245, 106 N. W. 1074. The issue in the present case is not one of the issues included in the latter class, and hence it must be held erroneous to charge the jury that the evidence must be clear and convincing.
We are satisfied, however, that this error was entirely unsubstantial. The evidence that Keating ever employed the plaintiff to render legal services for Healy is very slight, and the evidence that such employment included employment as a mining expert is practically negligible. It seems extremely doubtful whether .any recovery could be sustained on any theory except the theory that the plaintiff rendered valuable services to the defendant (through his agent, Keating) which were accepted by Healy knowing that they were being rendered and that they were not intended to be gratuitous. This phase of the case was very fully covered in the charge of the
One sentence in the charge is complained of as a misstatement of fact, namely, the statement that the plaintiff did not claim that “such employment resulted from any conversation or dealing had with the defendant personally.” With reference to this statement, it appears that at the close of the charge the defendant’s attorney arose and stated to the court:
“There is one part of your honor’s charge which if I understand it correctly is a little too favorable to the defendant in the case. Tour honor stated that the plaintiff doesn’t claim that any services were rendered to the defendant by virtue of express employment. The plaintiff did testify, however, that on the occasion immediately preceding going to Duluth to draw the leases he asked the defendant if he wished him to look after his papers, too, and that the defendant said he did. That was denied by the defendant and the witness Keating.”
To which the court replied:
“I assumed that that was the situation, but I may be wrong. The jury has heard the statement of counsel; it only occurs*49 in the statement of claims made by tbe parties, and if that is the evidence they may so consider it.”
This seems to ns to cover the only substantial inaccuracy there was in the charge of the court. Had there been any other instance which ought to have been noticed, it would seem that counsel for the plaintiff should have assisted counsel for the defendant in his effort to eliminate possible error from the charge. In any event, the present position of the plaintiff seems almost to justify the statement of the original charge. In the plaintiff's brief in this court it is said that “the plaintiff does not claim and the evidence does not show any request in fact for services or any contract in fact. It shows, and plaintiff’s theory was, that he rendered services to defendant’s agent with the knowledge of defendant, and also to defendant, which were accepted by each of them; and that Healy had secretly appointed Keating his agent, and therefore obtained services by fraud and is liable therefor.”
We find no substantial error in the record.
By the Court. — Judgment affirmed.
A motion for a rehearing was' denied, with $25 costs, on May 1, 1914.