82 Wis. 265 | Wis. | 1892
On the 21st day of March, 1889, at Spokane Falls, in Washington Territory, the defendants, being strangers in that region and desirous of investing, money in mining properties in the mining region and of engaging in the business of buying and working mines and of finding and developing claims and finds, employed the jSlaintiff to explore the mining region, look up mineral lands and mines and chances of investing therein, and examine mines and rocks, and genei’álly sufivejr the whole field of that region, with a view of recommending to the defendants the purchase of mining property. The defendants made a
The defendants answered to the effect that the plaintiff, in order to induce them to enter into said contract with him, represented that he had traveled all over the states and territories above mentioned, together with Colorado, and, knew every mine and prospect that amounted to anything, in the mineral region of which Spokane Balls is headquarters, and that he was acquainted with the. oymers of the mines, and with mineral lands and prospects and those engaged in prospecting, and that he knew good chances of investment at great profits. The plaintiff also represented that he was a mining expert and fully- competent- to discharge the duties of said employment; and said plaintiff knew that said representations were false. The defendants entered into said contract in consequence of them, and they received.no benefit from the services of the plaintiff, al
The plaintiff moved for a reference of the whole case, on the ground that the trial would involve the examination of a long account, and said motion was granted, and Hugh Ryan, Esq., was duly appointed the referee to hear, try'and determine the case. The referee made his findings of fact and conclusions of law to the effect (1) that said contract was made; (2) that the plaintiff worked under the same until the 1st day of November, 1882; (3) that he necessarily paid out, expended, and disbursed, as his expenses while engaged in said employment, the sum of $837.35; (4) that he made no fraudulent statements or misrepresentations to the defendants, or either of them, to induce them to execute said contract; (5) that the plaintiff ceased work under said contract November 1, 1889, for the reason that the defendants failed and refused to pay him his salary thereunder, and failed to keep and perform the contract on their part; (6) that the plaintiff received from the defendants only the sum of $400, 'and there was due him at the commencement of this action, over and above said sum of $400, the sum of $912.50 for salary, and the further sum of $437.85 for money actually and necessarily paid out for expenses as above; (7) that the plaintiff in all respects performed the contract on his part; and as a conclusion of law that the plaintiff was entitled to a judgment against the defendants for the sum of $1,350.35, with interest from November 1, 1889, with costs.
1. On demurrer to the complaint the learned counsel of the appellants contend that plaintiff should have continued the employment and then sued upon the contract, or have rescinded the contract and resorted to a quantum meruit.
2. It is claimed to have been error for the court to refer this case for trial on the ground that the trial would involve the examination of a long account, when there was no such account apparent from the pleadings. The plaintiff’s claim for his expenses might readily suggest to the court, that such expenses would consist of a great many items of account, and I find in the record a bill of particulars containing about 150 items of account of the expenses. It was a very proper case for reference.
The other errors assigned are to the rulings of the referee on the merits of the case. Whatever may have been the representations of the plaintiff as to his competency to perform the services he undertook to perform for the defendants, they are only material so far as they relate to his competency to perform such services. He is charged with having represented himself to be a mining expert, and of his having had great experience in mining, and a wide acquaintance among men engaged in mining and prospecting, etc. Such representations are only material as they were
This testimony is overwhelmingly in favor of the plaintiff and against their defense. Why did they allow the plaintiff to continue in the field of exploration, at great expense of labor and money to himself, and make a part pay
In view of this testimony, we cannot say that the referee was not justified in making said findings, or the court in confirming the report and rendering judgment upon it. We certainly could not say that the findings of the referee are against the weight or preponderance of the evidence, which is the only ground for our interference with the findings of a referee. Walker v. Newton, 53 Wis. 336; Ely v. Daily, 40 Wis. 52; Cunningham v. Brown, 44 Wis. 72. There is a conflict in the testimony of the parties as witnesses, and questions of credibility which the referee is better able, and the court as able, to decide as this court, and their decision of them is at least equal to the verdict of a jury, which this court ought not to disturb. Bowe v. Rogers, 50 Wis. 598; Brusberg v. M., L. S. & W. R. Co. 55 Wis. 106; Mechelke v. Bramer, 59 Wis. 57.
By the Court.— The judgment of the circuit court is affirmed.