Same v. Same

8 Wis. 421 | Wis. | 1859

By thejOourt,

Cole, J.

When this case was before this court at the December term, 1854, the rights of the respective parties under the contract of July 23d, 1846, were adjudicated and settled: and therefore the questions arising upon the contract are not now before us for consideration. All that remains to be done in the case is to carry out the decree then pronounced in the cause.

The decree remanded the cause to the circuit court, with directions to said court to enter an order therein, referring the same to a commissioner, to bring before him upon proper notice, the parties to this cause, and to take proofs,

1. As to the amount of necessary improvements made upon the land described in the contract from the date of such contract to the time of filing of the bill herein; by whom the same were made, and the expenses thereof, with the dates and amounts of all payments for such necessary improvements made by the parties respectively.

2. As to the amounts expended in making such improvements upon said property as were necessary and required for the due use and preservation thereof, at any time since the filing of the bill, with the dates of such expenditures and by whom paid.

3. To ascertain the amounts received by either of said parties, from the sales of any portion of said property previous to filing the bill; and

4. Of all rents, issues and profits, derived by either, and all of the parties to this cause from said proporty from the 23d day of July, 1846, to the time of closing the- proofs in the case.

The commissioner was to report to the circuit court all of the proof by him taken as to the character and necessity of the improvements, the costs thereof, by whom paid, and the dates of payment, as well as all proofs touching the receipt of rents, profits and proceeds of sales; and that upon the coming in of said report, that the circuit court should proceed to render a final decree, in pursuance of further directions contained in the decree of this court. The case was referred by the circuit court to a commissioner to take testimony and make report thereof in conformity to this decree. A vast mass of testimony was taken by the commissioner, under objection mainly by the complainant, and reported to the circuit court. Exceptions were taken also by the complainant to the report of the commissioner, but it is impossible to tell from the record what exceptions were sustained, and what overruled. The circuit court then made the decree from which the present appeal is taken.

Although this court in its decree, laid down very clearly and distinctly, the principles upon which the account between the parties was to be stated, still they do not seem to have been fully comprehended by the circuit court, the commissioner who took the proofs, or the counsel of the respective parties. Indeed, it seems almost incredible how the circuit court and the commissioner could have so misapprehended the purport of the decree in reference to the grounds upon which the accounting was to be made. But before I proceed to notice some of the errors of the commissioner in taking the testimony and stating the account between the parties, I deem it proper to make some observations upon one or two points taken by the counsel for the complainant and appellant in his brief and in his argument.

It is contended that by this decree the complainant is bound only to contribute his proportion of the expenses of actually necessary improvements made upon the property; and that hence he ought not to be compelled to pay anything towards such improvements as the main dam, new saw mill and some other improvements, which it is insisted were matters of speculation undertaken on the part of the defendant, Harvey Jones. Such is not a fair and proper construction to be given to this decree. And it is absolutely essential to understand the grounds upon which the decree proceeds to keep fully in view the facts and circumstances of the case upon which the decree is based. Ordinarily, perhaps, it would be held that one tenant in common could not charge the other for such extensive and unusual improvements as were made upon this common property. But it must be borne in mind that the parties in this case occupied peculiar relations to each other. It clearly appears from the contract of July, 1846, and many other parts of this case, that it was contemplated and expected by the complainant on the one hand, and Harvey Jones on the other, to lay out a village site and build up an important town on the property mentioned in the contract. To accomplish this object the parties correctly foresaw that they, as proprietors of the town, in order to induce people to come' there and settle, would have to expend considerable sums of money in making improvements — that material repairs would have to be made upon the old saw mill, grist mill, race and wing dam in existence at the date of the contract, and undoubtedly other improvements, perhaps of a somewhat public character, were also contemplated. So also as intelligent and sagacious business men they well knew that the improvement of their water power would tend greatly to attract settlers to that point. Hence the main dam which was afterwards built, increasing the hydraulic power there, and the new saw mill affording the public greater facilities for procuring lumber, though these improvements might not have proven to be as profitable investments as some others by the direct returns upon the capital employed, and in the strict sense of the word could not be considered “ necessary,” yet by the collateral advantages resulting from them to their other property and the town, might have been the most j udicious and wisest investments that could have been made. The “ necessary improvements ” spoken of in the decree were such as were proper, fit and adapted to the accomplishment of the double object in view; the enhancement of their property by the improvement, and the building up of an important town at that point.

Again it is contended that the proof shows that the main dam was improperly constructed, and that in consequence thereof it became a source of ruinous expense to keep it in repair, and that the complainant, if chargeable at all for its construction ought only to pay his proportion of what a good permanent dam would cost. True, there is considerable testimony in the case strongly going to show that the main dam was not as economically built as it might have been, and that it was not constructed upon the best plan and with the most suitable materials, and that in consequence of these defects in its construction breaches were frequently made in it which cost large sums of money to put in repair. We discover, however, no evidence in the case thatHaryey Jones wilfully or wantonly squandered money in building the main dam or in making any other improvements or repairs upon the property, but on the contrary, we are satisfied that he exercised his best judgment in the premises. If he made mistakes or committed errors, as it is probable he did, they were errors of judgment, such as any prudent, vigilant business man might’ have committed under like circumstances, and therefore he ought not to be held entirely responsible for them. We therefore think it just and equitable that the complainant pay his proportion of what these improvements and repairs actually cost Harvey Jones, or his estate.

Of course when we speak of improvements made by the administrators of the estate, we only refer to such as were contemplated in the decree of this court as being “ such improvements upon said property as were necessary, and “ required for the due use and preservation thereof,” It was not supposed that any other improvements would be made after the commencement of the suit by any of the parties defendants. And perhaps I need make no further remarks in explanation of the 1st and 2d grounds upon which the account was to be stated as laid down by this court after saying that it was obviously intended that “ the commissioner should, by competent proof, ascertain the expense of the improvements made upon the property at the time such improvements were made, and by whom made, up to the time of filing the hill; as well as the cost of such improvements as were necessary and requisite for the due use and preservation of the property made since the filing of the bill. The points of inquiry are few and simple, and by a proper course of investigation there would not seem to be any difficulty in approximating to correct results. I now pass to another branch of the case.

In the decree directing the basis of taking and stating the account, the court did not declare that a different rule of proof would be observed from that which is usually applied. The 71st Rule in Eq., (Circuit Court Rules,) directs that all parties accounting before a commissioner shall bring in their accounts in the form of debtor and creditor. The general principles on which an examination before a master was conducted, and the mode of taking testimony, are given in Remsen vs. Remsen, 2 J. C. R., 494. In the present case the commissioner departed widely from the ordinary course of proceeding. He permitted the defendants for the purpose of charging the complainant with expenditures for improvements and repairs, to introduce schedules of accounts numbering from 1 to 16 inclusive, and to substantiate the same by books of account verified by the oath of L. H. Jones, and the book-keeper, Roberts. The accounts are headed, “ Mill Accounts,” "Neenah Mills to Jones and Yale,” "Jones and Yale’s Account with Neenah Mills,” "Neenah Grist Mill Account,” "Saw Mill Account,” "Water Power Account,” "Lock Account,” &c. There can be no doubt but that these books of account were improperly admitted in evidence. The accounts did not purport to be between the parties to this suit, and contain items of charge' for merchandize, lumber, logs, wheat, money paid for services-- and labor, and a great variety of charges evidently relating to-business and transactions different from improvements on repairs upon the property. We should judge them to-be the-general accounts kept by Harvey Jones in his life time of his business, and of his administrators since his decease. Many of the charges are so vague and indefinite that it is impossible to tell to what business or transactions they do relate, and there is no evidence explaining them; while it is evident that other charges, such as those for wheat, grain and logs, which were used for stocking the two saw mills, and the flouring mill, were improper items of charge against the complainant. He can only by the terms of the decree be charged with the cost of improvements and repairs, and the defendants must establish by something like legal and competent evidence, the expense that Harvey J ones and his administrators have been to in making them. As the case now stands, such is the imperfection and obscurity of the proof upon those points, that we are unable to conjecture what the first cost of these improvements and repairs were.

Another grave error committed by the commissioner was the course he adopted to ascertain the rents and profits of the property. The proper course was to ascertain what was a fair and reasonable rent for the property, and charge the party with this amount which had been in possession. But the commissioner took proof as to the expense of running the mills, including logs for the saw mill, wheat, and other grain, for the grist mill, and wages for the men employed in running them, and also took proof of the credits arising from the sale of the lumber, flour, &c. Although this course would give the net proceeds of the business, yet, for obvious reasons, was not what was contemplated by the decree. The property had been in the exclusive possession of the defendants or their intestate since 1847. They have managed and controlled it, stocked and run the mills, or leased them, as they saw proper, rented the buildings, and conducted the whole business, without any consultation with the complainant; and it would be very unjust and unreasonable to make him take the hazards and losses of the business which he was not permitted in any manner to control.

Again, as we understand the statement of the account, the commissioner embraced in it amounts received from sales of portions of the property since the filing of the bill. This is directly contrary to the decree, which directed him “ to take proofs as to the amounts received by either of said parties from the sales of any portion of said property, previous to filing the bill of complaint herein.” If sales have been made since the filing of the bill, they have been made pendente lite, and with full notice to purchasers of the claims of the complainant. The undivided one-fourth of the title to all property sold pendente lite remaining in the complainant, he ought not to be paid for an interest which he has not released.

The counsel for the complainant earnestly requested us to make an original and final decree in this cause which would settle all matters of difference between these parties, and thus put an end to this expensive and protracted litigation. Aside from the general objection which exists to entering original and final decrees in this court in cases like the present, a practice which the experience of every term shows to be inconvenient and objectionable, there is an insuperable difficulty to adopting that course in this case; that is, a want of sufficient proof upon which to base such a decree. We know very well that valuable improvements and repairs have been made upon the property, all of which will enure to the benefit of the complainant, but as before observed we are unable from the testimony to ascertain the costs of such improvements and repairs. We therefore might do great injustice to both parties should we attempt to make such a decree. It may be said that it is the defendants’ own fault that they did not show the value of such improvements by competent testimony. But they offered testimony upon those points which undoubtedly they considered competent for that purpose, which was admitted by the commissioner and the circuit court. Had this evidence been rejected, as it should have been, they might have shown by unexceptionable testimony the real value of the improvements made upon the property before the filing of the bill, and the costs of all repairs made since the filing of the bill for the due use and preservation of the property.

We, therefore, see no other way but to reverse the decree of the circuit court, and remand the cause for the taking of proofs and stating an account between these parties, and for a final decree, according to the decree of this court made at the December term, 1854.