Kelly v. Wright

65 Wis. 236 | Wis. | 1886

Lyoh, J.

The testimony is in conflict on the question whether the defendant employed the plaintiff to work for him on his farm. The jury found that he did so employ the plaintiff, and there is sufficient testimony to support the verdict in that behalf. The defendant was therefore primarily liable for the wages of the plaintiff earned in such service. The amount of damages recovered is also within the testimony, and does not exceed the sum for which judgment is demanded in the complaint.

The only other questions which require consideration arise upon tfte testimony concerning a settlement of the cause of action, and the rulings of the circuit judge thereon. It appears that before This action was brought the plaintiff sued both of the Wrights for the same wages. TIis attorney in that suit negotiated a settlement thereof with Edward M. Wright, and took his note for $80, payable in eight monthly instalments, in satisfaction of the plaintiff’s claim, and then discontinued the suit.

Such attorney was called as a witness by the defendant, and testified to the above facts, subject to an objection to his competency. He was examined fully in the case, and further testified, under like objection, that four or five days after he took the note he met plaintiff at the train to give it to him; that plaintiff said the note was of no use, that witness might keep it, and let Wright pay the money, and send it to him. Some months later, perhaps a year, witness mailed the note to plaintiff, who within three days thereafter returned it to the witness and repudiated the settlement. The witness further testified as follows: “ I think he knew of my taking the note-within a week after I did so. I am not positive. I either wrote him or saw him on the train at that time.” In his charge to the jury the judge ruled out the testimony of the attorney as incompetent.

Nothing was ever paid on the note, and the same attorney testified that he informed plaintiff that he could not collect it. No doubt the maker was irresponsible financially.

It will be observed that the attorney does not testify that the plaintiff ever authorized him to make the settlement he did. The plaintiff in his testimony denied knowledge of any settlement until he received the note; he also denied any recollection that he ever authorized his attorney to make a settlement; but testified that his attorney “tried to make a settlement, and said Dr. Wright [the defendant] would sign a note with the boy, and make his son [Edward M. Wright] pay it.” The foregoing is the substance of all the testimony on the subject of the alleged settlement.

It will be assumed, for purposes of the case (but not decided), that the testimony of the attorney was erroneously ruled out. Rut such error does not necessarily work a reversal of the judgment. That result does not follow, unless the jury might properly have found, had the rejected testimony been submitted to them, either that there was a valid settlement of the plaintiff’s claim, or, the settlement being unauthorized, that the plaintiff, with full knowledge of all the facts, ratified and confirmed it. With the testimony of the attorney retained in the case the record is barren of proof that such attorney was authorized to make any compromise of the claim. It requires no citation of authorities to show that an attorney, by virtue of his retainer alone, has no authority to compromise a valid claim for $300 against a person presumably solvent and responsible by accepting in full satisfaction thereof the note of an irresponsible person for $80.

Recause there is no proof of authority to make the settlement, the plaintiff is not bound by it, unless he afterwards ratified it. It is essential to a valid ratification thereof that the plaintiff knew all the terms and stipulations of the compromise when he so ratified. There is no satisfactory evidence that he saw the note until it was sent to him a year later, more or less; or that until that time he knew the amount of it, when it was payable, or that it was signed by Edward M. "Wright alone. Had the jury found that he knew these things before the time indicated, the verdict would have been unsupported by the testimony.

We are thus brought to the conclusion that had the rejected testimony of the attorney been retained, and the question of settlement been submitted to the jury, they could not properly have found a valid compromise of the plaintiff’s claim, or an ■ effectual ratification of the settlement which the attorney attempted to make. It follows that the ruling out of the attorney’s testimony worked no injury to the defendant. The verdict would necessarily have been the same had the ruling been the other way. It is scarcely necessary to add that the ruling out of such testimony could not have affected the finding by the jury that the defendant employed the plaintiff to do the work and is liable for his services.

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