71 Wis. 18 | Wis. | 1888
"We are urged very strongly bjr the learned counsel for the appellant to reverse the judgment on the ground that the evidence does not sustain the findings of fact as to the value of the services of the plaintiff, as found by the referee and confirmed by the court. Upon a review of the evidence, it is very clear that the value of the services as found by the referee is not only sustained by the testimony in the case, but by a clear preponderance of such testimony. We cannot, therefore, reverse the judgment, as against the clear preponderance of the evidence in the case.
There were two other exceptions taken to the rulings of .the referee in the court below which the appellant alleges as error. In the defendant’s answer, setting up the several payments made by him, he gave a bill of items, and, as he claims, in said bill of items by mistake left out a payment which was made to the plaintiff by the “Appleton Iron Company ” for the services claimed to have been performed by him, and for which he was seeking payment of the defendant in this action, amounting to the sum of $260. On the trial, he gave evidence tending strongly to prove such payment, and then moved to amend his answer so as to set up this payment. The motion was denied, and the defendant duly excepted. .
The motion to amend was in the following language: “I move to amend the answer in this case by inserting, immediately preceding the first counterclaim, the following: ‘ In case it should be found or held that the services performed
The pertinency of the form in which the amendment was proposed to be made, arises out of the fact that a very large claim was made by the plaintiff from the defendant for services in conducting a proceeding in bankruptcy for the Appleton Iron Company, and for the organization of the Appleton Furnace Company. For this service the plaintiff was allowed the sum of $1,200 by the referee. The defendant had denied that he was under any obligation to pay the plaintiff for such service. The $260 which he desired to have allowed as a payment in part of these services was claimed by the defendant to have been paid by a check drawn by A. L. Smith, president of the Appleton Furnace Company, on the First National Bank of Appleton, payable to the plaintiff or bearer. The check, offered in evidence,' was in the following words and figures:
“ $260. AppletoN, ~Wis., November 28, 1876.
“The First National Bank of Appleton pay to Gerry Thorn or bearer two hundred and sixty dollars in currency.
[Signed] “ A. L. Smith, Pt. Appleton Furnace Co.”
The check was stamped: “ First National Bank, Appleton, "Wis. Paid November 29, 1876.”
In regard to this check the defendant, in answer to a question of the plaintiff on cross-examination, testified as follows: “ Question. This check of $260, did you ever de
, II. D. Smith, the secretary and treasurer of the furnace .company, testified, on direct examination, “that the company paid Mr. Thorn $260 on the 28th of November’, 1876, by check.” On cross-examination, he testified as follows: “Question. Now, you say you paid me a check of $260? Answer. I did not say so. I said that you were paid by the company. I have got that check.” Witness produced the check, and said: “That check was returned to me through the bank, and I entered it up. The' check is an Appleton Iron Company check. It is on the ‘ Appleton .Iron Company’ books. I charged it up myself on the 6th of November, 1876. I was secretary and treasurer. I .generally signed the checks of the Appleton Furnace Com
This is substantially the evidence of the defendant in regard to- the payment of the $260. Opposed to this is the testimony of Mr. Thorn denying any knowledge of the check, and denying that he ever received the check or the money thereon. Mr. Thorn was testifying eight years or more after the alleged transaction, and from mere memory. He does not show that he kept any account of the payments made to- him by the defendant or by the Appleton Eurnace Company on account of the services he performed in behalf of said defendant or said company. Upon this evidence we think it must be held that the $260 was in fact paid to the plaintiff for his legal services in the matters for which he claims pay from the defendant in this action; and the only reasonable doubt about the matter is whether the payment was made by A. L. Smith or by the furnace company. So far, however, as the right to have it allowed as a payment in part for the services performed, it is immaterial whether the defendant paid or the furnace company. In either case it was m part payment for the services of the plaintiff in relation to matters he seeks to recover for in this action. No objection was made to the evidence when offered on the trial, and, under a well-established rule of practice of the courts, it might perhaps have been allowed as a payment by the referee and court without any formal amendment of the answer setting up the payment. To this view of the case it might be objected that the evidence, when offered and received, was admissible and relevant upon this issue in the case made by the defendant’s denial that he had employed, the plaintiff or agreed to pay him for his services in the bankruptcy proceedings of the Ap
•' It is contended by both the defendant and the furnace company that this money was paid to the plaintiff in part •discharge for his services in the bankruptcy proceedings and the organization of the furnace company, for which compensation was claimed by and allowed to the plaintiff in this action to the amount of $1,200. And, unless allowed as payment in this action, there would seem to be no way in which either the company or the defendant could hereafter recover the amount of the plaintiff. There was no •valid objection to the form of the amendment. The defendant had the right to contest his liability to pay for the services rendered for the Appleton Iron and Furnace Companies, and, if he failed in that defense, it was certainly just that he should be allowed to show that the plaintiff had •been paid for his services in respect to these matters, either
It is also alleged that the court erred in refusing to allow interest on the three notes set up as counterclaims at the rate of ten per cent, per annum up to the time of the report of the referee. The referee allowed the interest at ten per cent, only to the time of the commencement of the plaintiff’s action, and then deducted the amount of the said notes, with interest to that time, from the account found due the plaintiff at the commencement of the action, and allowed the plaintiff interest at seven per cent, upon the balance from the date of the commencement of the action to the date of the report of the referee. We think this was error. The counterclaims upon these notes are nothing more or less than actions by the defendant against the plaintiff. Had not these actions been set up in the action of the plaintiff against him, and a separate action had been brought on them by the defendant against the plaintiff, there could be no doubt that interest must have been computed on the notes at the rate of ten per cent, from their date to the date of the trial of the action; and there is no reason for holding a different rule when they are set up by a defendant by way of counterclaim, Avhich is an action by the defendant against the plaintiff. In this case the rule of the circuit court was favorable to the plaintiff, but, if it be the true rule, then if the plaintiff brought his action upon a note of the defendant bearing interest at ten per cent., and the defendant counterclaimed a note of the plaintiff drawing interest at five per cent., the interest on the plaintiff’s note would only draw ten per cent, to the commencement of the action, and the amount of the defendant’s five per cent, note would have to be deducted at the date of the
It was also urged by the learned counsel for the appellant that the court erred in refusing to permit the defendant to give in evidence an account rendered by the plaintiff to the defendant, before the action was commenced, in which the defendant claimed the plaintiff had fixed a much smaller sum as the value of his services than -was claimed by his complaint in the action. It is a sufficient answer to this objection that the record does not contain such account, and we cannot say that, if it had been received in evidence, it would have benefited the defendant. In an}*- event, it could have had but little weight as evidence on the trial. Nauman v. Zoerhlaut, 21 Wis. 466, 469. The record does not disclose that the defendant was prejudiced by the refusal of the court to receive the account in evidence, and it is not therefore a sufficient ground for a reversal of the judgment.
By the Court.— The judgment of the circuit court is reversed/and the cause remanded with directions to that court to enter judgment for the plaintiff in accordance with this opinion. ■