Lowe v. Ring, 106 Wis. 647

Lowe v. Ring

106 Wis. 647 | Wis. | 1900

Winslow, J.

The trial court held, as a matter of law, that the defendant could not be allowed anything (1) for the services in the action against Christy, except the services before the referee, because the claim was outlawed; (2) for services in the action against the Kirklands, for the same reason; (3) for services as administrator in the settlement of the Archer estate, because no valid contract to pay for the same was shown; and (4) for services upon the appeal in the case of Hill against the Archer estate, because the bank never authorized him to defend that case in any proper manner. Proper exceptions were taken to these rulings, and they are assigned as errors upon this appeal.

1. As to the statute of limitations: The rule which is established with substantial uniformity by the decisions is that the statute does not commence to run upon an attorney’s claim for services and disbursements until the termination of the proceeding in which they were rendered, where his employment was to conduct such proceeding to its termination, or until the employment is otherwise terminated. Weeks, Att’ys (2d ed.), § 344, and cases cited; MyGatt v. Wilcox, 45 N. Y. 306; Johnston v. McCain, 145 Pa. St. 531; Davis v. Smith, 48 Vt. 52. Applying this rule to the services rendered in the Christy and Kirkland cases, it is quite apparent that it cannot be said, as matter of law, that the statute of limitations had barred either claim.

In the Christy case the defendant’s evidence tends to show that the employment was to collect certain notes by suit; *654that the action was tried several times, but no result reached; that a reference as to one branch of the case was agreed on; that it lay dormant for more than six years in this condition, until finally a trial was had before the referee, which took place in 1895, and which was conducted on behalf of the bank by the defendant; and that after this trial he was advised by the then president of the bank to take no further steps in the case. This evidence would certainly justify a finding by the jury that the defendant’s employment was entire, and did not terminate until after the trial before the referee.

In the Kirkland case the defendant’s evidence tended to show that in 1880 or 1881 the bank placed Kirkland’s note in the defendant’s hands for collection; that he procured from Kirkland and his wife an assignment of a life insurance policy, as collateral to the note; that in order to perfect the collateral he brought an action to compel the issuance of a paid-up policy to the bank, which action was not tried, but was settled by the issuance of the paid-up policy to the bank, which policy was retained by the defendant, together with the note to which it was collateral, as an uncompleted collection, until August, 1897, when he surrendered the policy to the president of the bank upon his assurance that he should be paid for his services. Had Mr. Ring simply been employed to bring an action to obtain the issuance of a paid-up policy of insurance, the statute of limitations would undoubtedly have commenced to run upon his claim for services from the time when the action was settled and the policy was obtained; but if his employment was to collect the. note, and the obtaining of the insurance policy was simply a step in the course of that employment, then we think the statute would not begin to run until his employment to collect the note was terminated, and, under the defendant’s evidence, there seems to have been no such termination of the employment,— at least, until August, 1897.

2. As to whether there was any evidence which would *655sustain a verdict that there was an obligation to pay defendant for his services in the settlement of the Archer estate: These services were rendered while the defendant was president of the bank, and the view of the trial court seems to have been that under these circumstances there must be shown an express contract made by the directors with the defendant, in order to entitle him to recover. These services were no part of the defendant’s duties as president of the bank, and the rule undoubtedly is that where services are rendered to a corporation by one of its officers, which are clearly outside of his official duties, a recovery may be had therefor under implied contract, if the circumstances be such as to fairly imply that it was expected that the services were to be paid for. Corinne M., C. & S. Co. v. Toponce, 152 U. S. 405; Bartlett v. Mystic River Corp. 151 Mass. 433. In considering whether such implied contract was proven, or whether the services were rendered gratuitously, the nature of the corporation and its business, the extent and character of the services, the comparative amount and value of the services of other officers, as well as all the other surrounding circumstances, are to be considered. Bartlett v. Mystic River Corp., supra. The plaintiff claims that there was no sufficient testimony in the present case to show that an- express contract was made by the proper officers of the bank to pay the defendant for his services in the Archer estate matter, and, indeed, the testimony seems quite slender; but, conceding that there was no testimony which would justify a finding of express contract, the question still remained whether the circumstances were such as to raise an implied contract.

The suggestion was made that the bank had no power to make a contract to pay an administrator of an estate for his services, because the. administrator could obtain his pay in the county court out of the estate, and that a contract to pay him by a creditor would be contrary to public policy. *656We have been unable, however, to appreciate the force of this argument. Were there any antagonism between the interests of the creditor and the legal duties of an administrator, the argument would be strong, but there is not. The interest of the creditor is to have the estate prudently administered, to the end that the greatest possible sum should be realized from it, and this is the duty of the administrator. In the present case the bank was vitally interested in the wise administration of Archer’s estate. Its claim was very large, and the claims of all other creditors, combined, were very small. By a prudent administration, it seemed that its claim might probably be secured in full, and, if the president of the bank acted as* administrator, all funds would pass through the bank. The advantages of a friendly administration were obvious, nor was such an administration inimical to the interests of the estate. Our statute recognizes the right of the principal creditors to administration after the surviving husband or widow and next of kin have neglected to apply. (Sec. 3801, Stats. 1898.) Doubtless, the fact that the appellant was largely interested in the bank (being at that time the largest individual stockholder), and the fact that he was entitled to obtain his pay from the assets of the estate through the county court, should be considered in determining the question whether a contract directly by the bank to pay him for his services in the administration of the estate, and in the appeal in the case of Hill v. Archer, should be implied; but these facts would not prevent the making of an express contract for payment, nor the implication of a contract in the absence of an express contract.

Upon the whole case, we think the court was in error in withdrawing the various claims referred to in this opinion from the consideration of the jury, and hence that a new trial of the case is necessary.

By the Court.— Judgment reversed, and action remanded for a new trial.