C. Aultman & Co. v. Ritter

81 Wis. 395 | Wis. | 1892

LyoN, C. J.

1. The verdict and judgment undoubtedly include all the charges in defendants’ counterclaim, and allow plaintiff’s claim, less $63 for the reaper. It was said in tbe argument that on tbe trial tbe plaintiff abandoned tbe charge of $63 in its account. But, however that may be, tbe evidence is sufficient to support a finding that it is 'not a proper charge against defendants. This disposes of tbe plaintiff’s cause of action.

2. Tbe two items in tbe counterclaim of $16.75 and forty cents were also sufficiently proved, and no further reference need be made to them. Tbe remaining items in tbe counterclaim are disputed charges for commissions. These will be briefly considered.

Tbe sale of the engine and saw-mill was a transaction outside tbe regular agency of defendants. Tbe testimony tends to show that they made a special contract with plaintiff, through its duly authorized agent, to tbe effect that if they sold tbe property they should have ten per cent, commission on tbe price for which it sold; that they sold it to one Marsh for $1,855, and that tbe plaintiff forwarded the property from Ohio to be delivered to Marsh. On tbe other band, there is testimony tending to show that tbe firm of W. G-. & "W. Barnes, of Freeport, Ill. (which firm was tbe general agent of plaintiff for its Wisconsin business), purchased tbe engine and saw-mill of tbe plaintiff, and that defendants sold tbe same for them and not for tbe plaintiff. There being a conflict of testimony, it was for the jury to determine whether plaintiff or its Freeport agents were liable to tbe defendants for their commissions on such sale. Tbe jury found that the plaintiff was so liable, and their verdict in that behalf cannot be questioned on appeal.

Marsh gave notes and a chattel mortgage on tbe property running to plaintiff for tbe price of tbe property. Such notes remaining unpaid after maturity, tbe property was seized on tbe chattel mortgage and sold either to plaintiff or its Freeport agents. As to which of these was tbe purchaser there was also a conflict of testimony. It is clear that tbe jury found tbe plaintiff was such purchaser. Tbe testimony tends to show that an agent of plaintiff agreed in its behalf that if defendants would find another purchaser for the same property they should be paid $50 commissions on the sale, and that defendants found such purchaser. This testimony supports the verdict which allows defendants that commission.

The balance of $48.62, charged in the counterclaim, is for unpaid commission on machinery sold by defendants for plaintiff in the line of their agency, but which had not been paid for when this action was commenced. The agreement between the parties was that commissions should not be due until the property in the sale of which the commissions were earned should be paid for. There was testimony, however, to the effect that judgment had been obtained on the notes taken for such property; that the plaintiff, through its agent, released the judgment, accepted other security for the debt, extended time of payment thereof several years, and assured defendants that their commissions were thereby fully earned and payable. This testimony is sufficient to support the recovery of that item.

We conclude that the verdict cannot properly be disturbed for want of testimony to support it.

• 3. On the trial Mr. Wilson, who had had been the attorney for plaintiff through the whole time of the above transactions, was compelled by the court, against, objection, to testify that he received a check from plaintiff with which to pay the fees and charges of the person who made the sale under the Marsh chattel mortgage, and that he paid such fees and charges therewith. This is claimed to be a violation of sec. 4076, R. S., which provides that “an attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment.” We think otherwise. There was no communication made by or on behalf of plaintiff to Mr. Wilson for bis advice thereon, no advice was given, and there was nothing confidential in the transaction.

4. A copy of the Marsh chattel mortgage was offered in evidence by defendants to show that such mortgage was executed to plaintiff as mortgagee. After it was proved that the copy offered was the same instrument under and by virtue of which the engine and saw-mill were sold, and that the plaintiff furnished the same as evidence of authority to make such sale, the copy was admitted in evidence. We discover no error in this. By its conduct in respect td the instrument the plaintiff gave it credit as an original, and should not be permitted to deny its authenticity as such.

We find no error in the record, and must therefore affirm the judgment of the circuit court.

By the Oourt.— Judgment affirmed.