Charboneau v. Orton

43 Wis. 96 | Wis. | 1877

LyoN, J.

1. The plaintiff’s receipt of January 6,1873, does not purport to be in full of all claims against the defendants on account of the moneys collected by them on the judgment against Jung and others; neither is it, in terms, a receipt on account of such collection. The object of the receipt was, doubtless, to preserve written evidence of the sums respectively paid over and retained by the defendants, and no attempt seems to have been made to express in it the terms of any agreement between the parties as to the effect of such payment, if any such agreement was made. We must therefore look to the other evidence in the case for a solution of the question whether the plaintiff received the money in full, or only on account of the collection.

The only direct testimony on the subject was given by the plaintiff, the defendant Mulberger, and Mr. Gardner. The plaintiff denied that there was any settlement between himself and Mr. Mulberger, or that he accepted the money in satisfaction of his claim against the defendants on account of the collection. On the other hand, Mr. Mulberger testified that the plaintiff accepted the money in full settlement of the whole matter, with the single qualification that if Judge Orton should afterwards consent to a reduction of the defendants’ charges for their services, the reduction should be made. Mr. Gardner, who was present when the money was paid to the plaintiff and the receipt given, fully corroborates the statements of Mr. Mulberger in every essential particular.

Regarding the conflicting testimony of the parties as bal-lanced, we have the testimony of a credible and disinterested witness thrown in the scale in favor of the defendants. Can there be a doubt that the direct evidence preponderates in their favor ? Some collateral circumstances were proved, which, perhaps, have some bearing.upon the question of settlement; but they are not very material, and fall far short of overcoming the great preponderance of direct proof of a settlement between the parties. The fact that the settlement was not pleaded in the first instance, is not of much significance. There may have been good reasons for not interposing that defense in the original answer, consistent with the fact that there was a settlement.

Judge Orton never consented to any reduction of the defendants’ charges.. It must be held, therefore, that the modifications of the report of the referees, by the circuit court, are supported by the evidence.

2. "When the receipt of January 6 th was produced on the trial before the referees, it showed some erasures and inter-lineations, and the plaintiff was permitted, under objection, to testify that the same were made to satisfy him that it was not so drawn as to show a final settlement. The objection was renewed 'in the circuit court, and sustained. The ruling is assigned as error.

As originally drawn, the receipt contained the words “ with interest,” immediately after the figures 1872. These words were erased. It also contained the word “ less,” which was erased, and “ leaving in their hands ” interlined in stead. The same word again occurred towards the close of the receipt, which was erased and “ also ” interlined. These alterations do not change the legal effect of the instrument, but were necessary to make the receipt express clearly and accurately the sum collected on the judgment, the sum paid to the plaintiff, and the sum retained by the defendants; and they do not indicate that they were made for the purpose alleged by the plaintiff. Upon this subject, however, it is sufficient to say that we have considered the case as though the testimony had not been stricken out.

3. There is one other feature of this case, which, although not affecting our decision, presents a question of professional duty which cannot be passed over in silence without danger of appearing to give the sanction of this court to a practice which it cannot sanction. It appears from the proofs that Mr. Mulberger refused to pay over any of the moneys collected for the plaintiff, unless the latter would accept the sum offered, in full satisfaction, and so receipt therefor. Mr. Mulberger had the undoubted right to retain out of the collection the defendants’ reasonable charges for their services; but it was not competent for him to exact a receipt in full as a condition precedent to paying over the sum admitted to belong to the plaintiff. The parties disagreed as to the defendants’ charges, and in such a case it is the duty of the attorney to pay to his client the sum which he admits his client is entitled to receive, and the latter can only be required to receipt therefor on account, to evidence the sum paid, leaving the balance to be adjusted in some appropriate proceeding. In such a case, and after due demand, the court, on a summary application, will compel an attorney to pay over the sum which he admits due his client, and will only require the client to receipt therefor on account.

These remarks must not be understood as a censure of Mr. Mulberger, for they are not so intended; but they are made because a question of professional duty is involved, and silence might result in misapprehension. It is but justice to Mr. Mulberger to say, that there is considerable evidence tending to show that the plaintiff is a somewhat exacting and troublesome client, inclined to distrust and censure his attorneys unjustly, and we can well understand and appreciate the very natural desire of Mr. Mulberger to close up the whole transaction at once, leaving nothing for future controversy.

By the Court.— The order of the circuit court is affirmed.