Wojahn v. National Union Bank of Oshkosh

144 Wis. 646 | Wis. | 1911

MaRsiiall, J.

The record does not disclose the proof produced in favor of the reference. The order recites that it was satisfactory to the court. Counsel for appellant should have shown by the bill of exceptions precisely upon what the •decision was made. They failed to do so. In face thereof it must be presumed a case was made on the motion warranting the conclusion reached. It cannot be assumed the order was made on the pleadings alone. The character of the cause, as shown by the complaint, does not indicate that the cause was not referable under any circumstances. Error in regard to the reference not having been made to affirmatively appear by Fringing to our attention with certainty the exact nature of •the case as made to appear on the application to refer, the presumption must be in favor of respondent regardless of the case made on tbe trial.

A few observations respecting tbe practice followed subsequent to tbe filing of tbe referee’s report will not be out of place. They will suggest, in a measure, wby tbe decision of tbe trial court does not possess quite tbe force wbicb it might bave bad.

Upon a referee’s report being filed, and counsel thinking tbe findings of fact, or some of them, to be contrary to tbe evidence, exceptions may be filed and relief demanded by motion to correct.tbe findings and for judgment accordingly. Sec. 2865, Stats. (1898). That course was not strictly followed here, though in tbe opinion of tbe court it was substantially. Counsel for respondent moved on exceptions for vacation of tbe report and for judgment on tbe exceptions and tbe evidence. It is thought by tbe court that tbe trial judge-regarded tbe motion as one to correct tbe findings of fact and conclusions of law and for judgment thereon as corrected. Tbe motion was disposed of by a decision and opinion of considerable length covering all phases of tbe case, concluding, as-indicated in tbe statement, by a determination that all findings conflicting therewith “must be set aside,” etc., and tbe suggestion that “such findings may be drawn as are deemed proper in accordance herewith,” followed by an order for judgment in favor of defendant dismissing tbe complaint on tbe merits with costs. Tbe judge, in my personal view, but not that of tbe court, left it optional with counsel for respondent to enter judgment without any formal findings, or to bave findings in their own language, consistent with tbe opinion, placed on file. Tbe court, notwithstanding tbe closing language of tbe decision, is of tbe opinion that tbe judge expected such formal findings approved by him would be filed as a final basis for judgment; but, obviously, it was supposed such findings as might be filed would be in tbe language o£ counsel. That fact alone is not subject to criticism. That-it is sanctioned by long settled practice all agree. However, tbe course of events clearly explains wby tbe findings signed were not a concise, logical statement of conclusions of tbe issues raised by tbe pleadings, but are somewhat of an argumentative review of tbe evidence in sections, having rather a partisan cast, extending to double tbe length of tbe very full statement and opinion filed by tbe court, and mentioning all details of tbe evidence favorable to respondent in very favorable light with all tbe minor conclusions mentioned by tbe trial judge and some significant ones besides. There is no intention in this to reflect upon tbe able counsel or circuit judge. Tbe cause from tbe standpoint of tbe advocate was well presented in tbe findings and they covered every point in tbe case. But that the cause came to be pictured in a somewhat one-sided way is most natural. Such cast is indicated' by tbe finding that plaintiff became a stockholder in tbe Brownell Company with tbe expectation of making a profit on bis stock and succeeded in doing so. We are unable to find anything in tbe court’s decision and opinion decidedly to that effect. The evidence, as it seems, is tbe other way, as will be demonstrated later on.

Looking at tbe record in tbe whole, it seems tbe real judicial thought embodied in tbe judgment is found most certainly in tbe decision and opinion. Therefore, in treating tbe case, it will be done largely from that viewpoint, paying careful attention to tbe findings as well.

Taking up tbe merits of tbe case we will observe, at tbe start, that a report of a referee appointed to bear, try, and determine a case is of no little dignity. It does not fall much, if any, short of findings of a trial court. In review by the latter court no greater liberty can well be taken with such a report, than this court according to tbe settled practice, can take with conclusions on matters of fact made by a circuit court. Tbe trial court, in terms, recognized that general rule. It is one thing to recognize tbe mere language of a rule and quite another to appreciate the force of it according to settled practice. In this respect it seems tbe trial court’s determination. bears some evidence of infirmity.

When it is said that the findings of a referee should be affirmed by the circuit court unless they are against the clear preponderance of the evidence, as in Leasia v. Penokee L. Co. 103 Wis. 304, 79 N. W. 224, and many similar cases, the same degree of certainty respecting the rightfulness of the referee’s decision is intended as in case of findings made by a court when the same language is used in respect thereto. Ott v. Boring, 139 Wis. 403, 121 N. W. 126. The rule contemplates a strong presumption in favor of the findings; one that cannot be displaced unless the evidence against them is so clearly that way that failure to decide according to the preponderance appearing from the printed or written record, «cannot reasonably be accounted for by the helps which the trial officer may have had that could not be made a matter of record for the benefit of a reviewing court, particularly the appearance of witnesses and their manner while giving their evidence. These unrecordable helps in discovering the truth, may, reasonably, be so significant that, when findings rest upon conflicting evidence from the mouths of witnesses, they ■cannot be much more easily disturbed by a reviewing court than the verdict of a jury. In any event, reasonable doubts, under all the circumstances, as to whether the evidence preponderates against the findings, are to be resolved in favor of the negative. The statute says that the report of a referee shall have the effect of a special verdict. Sec. 2865, Stats. (1898). It is not improbable that the Code makers intended that they should stand upon the same plane, as doubtless it was that they should, in substance and conciseness, be substantially the same, as such special verdict. In the beginning it was said that such finding could only be disturbed in such circumstances as would warrant setting aside the verdict of a jury. Later the rule we now have was adopted, largely, as a history thereof shows, with reference to decisions in other jurisdictions having no Code provision like our sec. 2865.

The real significance of the term “clear preponderance of’ the evidence,” unless from time to time specially recurred to in opinions of this court, it seems is liable to be lost sight of, as there are quite persuasive indications that it was here.

In Ott v. Boring, supra, the matter was considered at considerable length. There the trial court, as here, radically changed the findings of the referee. That was unexplainable from the record, except upon the theory that the true meaning of “clear preponderance of the evidence” was not appreciated. After a full review this court felt bound to reinstate the findings and order judgment accordingly. It was there said that all reasonable doubts are to be resolved in favor of such findings ; that

“there are many things which cannot be spread upon the printed record, but may properly be considered by a trial court and are of great, and often controlling, significance in determining the truth as between conflicts from the mouths of witnesses. As experience shows, and from the nature of things, justice is much more likely to be done by leaning pretty strongly upon the initial determination than by endeavoring to treat a disputed matter from an original standpoint.”

■The rule as to clear preponderance of the evidence, requires the overbalancing weight to be “so apparent as to manifestly outweigh any probable legitimate influence upon the triers of those advantages for discovering the truth which the reviewing tribunal cannot have.” It was suggested in Menasha W. W. Co. v. Michelstetter, 126 Wis. 427, 105 N. W. 927, that it must appear, looking at the printed record alone, that the evidence in support of the findings is overwhelmingly overcome to warrant disturbing them. That was emphasized and enlarged upon in Rankl v. Schmidt, 133 Wis. 103, 106, 113 N. W. 423. In Endress v. Shove, 110 Wis. 141, 85 N. W. 651, it was said that such rule is unbending and admits of no exception.

Thus it will be seen firmly entrenched in onr jurisprudence, that there is little room for disturbing the. report of a referee or the finding of a trial court unless the same are manifestly so contrary to the evidence as to be really unexplainable except upon the theory of wrong rules of law having been applied, or material evidence having been wholly overlooked, or a perverted view having been taken of the case. So a situation, as experience shows, seldom is presented where either the conclusions of a referee or trial court, on mere matters of fact, are disturbable. Further, that the most common mistake in changing reports of referees comes from either not appreciating the significance of the term “clear preponderance of evidence” or that it applies to a referee’s report when under consideration by a trial court the same as the findings of the latter when under review by this court.

Here there are quite plain indications that the trial court while starting out by recognizing the language of the rule we have discussed straightway entered upon doing what was done and condemned in Ott v. Boring, supra, viz.: treating the “disputed matter from an original standpoint,” as we shall now see.

The court opened the review of the case, as indicated in the statement, by observing that “there are only two disputed questions of fact on neither of which does the referee make findings.” Then reference was made to the conflict between Hackett and plaintiff as to whether the former expressly promised the latter compensation for his services and the conflict between Rideout and plaintiff as to whether the former as an official of respondent, on one occasion promised the latter compensation, and Edwards, also one of such officers, at one time made a like promise, — as the two disputed questions, and then it was observed that, since in the first instance Hack-ett and plaintiff were in direct conflict, there was, obviously, no preponderance of evidence in favor of the latter, and that in the other instances there was the same situation as to Edwards, creating a preponderance of evidence against plaintiff.

Keeping in mind that tbe recovery was not sought on express contract, and that nothing appears in the complaint suggesting any such contract, it will be seen that the court misconceived the situation in referring to the mere evidentiary conflicts outside the cause of action disclosed in the pleading as involving facts in issue which the referee neglected to pass upon, and furthermore, by speaking of all other facts as not in dispute. There was no necessity of passing upon the two particular matters in the findings; none whatever. The trial court not only mistakenly dignified the mere conflicts as - if they were vital facts in issue, but misapplied the law thereto. Certainly the learned trial judge, by mere oversight rather than want of knowledge on the subject, held that, necessarily, there was no preponderance of evidence in appellant’s favor in the one case because he was contradicted by one witness, and that there was a preponderance of evidence against him because as to one occasion he was contradicted by Eideout and another by Edwards. It is a common thing for a finding of a court or jury to be made in favor of the party on whom the burden of proof rests on his uncorroborated evidence alone, clearly contradicted by the adverse party. A matter in issue on conflicting evidence is not to be settled by merely taking account of the number of persons testifying adversely. One may testify as positively as the other, yet the evidence of one reasonably appear clearly true and the evidence of the other even wilfully false. We shall not take time to discuss the credibility of the evidence referred -to, but will remark that while there are circumstances that might be so viewed as to fatally discredit the evidence of appellant there are many others which tend to corroborate him and discredit the evidence of I-Iackett, Eideout, and Edwards, so that had the cause of action been on express contract and a finding been made in appellant’s favor as to the conflicts referred to, it is difficult to see how the result could be disturbed as against the clear preponderance of the evidence.

The suggestion of the trial court as to the findings of the referee not covering the case, does not seem to be warranted. The findings might well have been somewhat more in detail, but they have the merit of conciseness, also of brevity, also of being pretty free from mere evidentiary matter and wholly free from mere argumentation. They are, in the main, framed in the language of decision as such findings should be. In language making about three pages of the printed record, they state, in a fair way, the ultimate facts upon which the legal conclusion reached by the referee was based.

The theory of the complaint is that appellant, at the request of ITackett, respondent’s cashier, who was competent to bind it by contract, performed for it services in protecting it from loss by reason of having become a creditor of the Brownell Company to an excessive amount; that he complied with such request, rendering valuable services covering a period of over five and one-half years, and that, thereby, respondent became liable to pay him the reasonable value thereof as upon implied contract.

There can be no fair question but what all the facts necessary to such an implied contract were covered by the referee’s finding with some particularity regarding the nature of the services and the circumstances of their rendition. It was wholly unnecessary to find, in words, that the parties made a contract by implication. The finding of all the minor facts necessary to the major one as a legal inference, the nature and amount of the services rendered, the reasonable value thereof, and the amount received thereon, was all-sufficient. To have added, as a conclusion of fact, that the parties made an implied contract that the services of appellant should be for hire was entirely unnecessary, though it would not have been an impropriety. There was a necessary implication of fact, as matter of law, from the minor facts found, so fully covered in the general conclusion that appellant was entitled to judgment for the amount found to be the reasonable value of the services less the amount found to have been paid thereon.

So it will be seen, up to this point, that as matter of law and fact as well, tbe trial court took a wrong view of tbe case. Mere conflicts in evidence outside tbe issues were referred to as facts in issue. Tbe status of appellant’s evidence in face of a conflict therewith, an even balance as to mere numbers, was misapprehended. Tbe findings were treated as not covering tbe case, which from tbe standpoint of tbe pleader they did fully.

From the point to which we have arrived the court proceeded very much, if not wholly, as upon an original decision of tbe case. At tbe outset, and as a preface to tbe consideration to follow, it was stated, as matter of law, that there being; no express contract established there could be no recovery except upon “a contract which the law implies from the undisputed evidence.”

We confess that for some time we were not clear as to what the learned circuit judge intended by the quoted language. Counsel for respondent seemed, on the oral argument, to share with us that difficulty and endeavored to clear up the ambiguity. They did not do so satisfactorily. They confessed, as we understood that, taking the learned judge’s language literally, it shows a misconception of the law. At the best we can look at the matter, the quoted language, by itself, creates doubt as to whether there was such clear view of the law and evidence as warranted overturning in ioto the findings of the referee.

Obviously whether there was an implied contract entitling: appellant to recover or not, did not, necessarily, depend on “the undisputed evidence.” That the court could not well have used that term as a characterization of the true state of the evidence, as counsel for respondent suggest, is plain, as there were several conflicts from the mouths of witnesses and very material conflicting evidentiary inferences, as the discussion.' by the court in the decision and opinion and the much more extended discussion in the findings, so called, which counsel' prepared, shows. Some important evidentiary matters were worked out, -largely from conflicting inferences. The question of whether there was an implied contract, was not, necessarily, solvable from the undisputed evidence but from the preponderating evidentiary inferences from facts established directly and circumstantially, there being conflicting inferences even as to many of the minor facts.

Did the respondent, through its cashier, request appellant to perform the service for which compensation was claimed ? That was found, as before stated, in his favor by the referee. He testified that such request was made by Hackett in his capacity as cashier. Hackett so testified, very clearly, as we understand his evidence. He carried the idea, it is true, that he did not promise appellant compensation and did not think of his getting any from the bank, but the whole trend of his evidence, from first to last, is that his dealings in respect to the matter with appellant were in his official capacity and to save respondent from danger of serious loss which, at one time, he thought might run up to many thousands of dollars in case of the Brownell Company not being so supervised and advised-respecting its affairs as to save it from apparently impending bankruptcy. Moreover, Hackett’s evidence tends to prove there was talk between himself and appellant with respect to compensation. He said he told plaintiff he had no authority to promise compensation. But that was a confession that compensation was talked about. The subject was so far in the minds of both that the very suggestion that he had no authority to expressly promise remuneration was rather pregnant with the idea that appellant would have to rely upon the implication which would arise from the circumstance than the idea that whatever he did would have to be regarded as done gratuitously.

True, the notes held by respondent were taken in the name of Hackett and the securities ran to him, circumstances to which the court seems to have given controlling effect in coming to the conclusion that the whole affair was a personal one of Hackett’s. But, as we read the evidence, it is undisputed that the two loans, the first of $15,000 and the second of $10,000, were made by the bank, Hackett using his name as a mere convenience. The bank advanced all the money. All the notes passed through it. All seem to have been kept by it, except a part to prevent an appearance of excessive loans having been made. One familiar with the way such business is done can easily see that Hackett had no mere personal connection with the matter. The evidence indicates he made the loans as a bank matter, and all the operations so far as the loans were concerned, in which he used appellant very efficiently, were to save the bank from any loss, direct or indirect. Not only is the finding of the referee that the loans were bank loans and appellant assisted in making them good at Haekett’s request, acting officially, not against the clear preponderance of the evidence, but are very strongly supported thereby. There are very many circumstances on this corroborating the direet evidence of Hackett and appellant, but we shall forego referring thereto in detail. Taking the case as a whole, there was no warrant which we can see, in disturbing the finding of the referee as to substantially all appellant’s services as regards the two loans aggregating $25,000 having been for respondent rather than for Hackett personally.

That the services rendered by appellant, extending as the referee found and upon evidence well supporting it, over some five years and a half, were very valuable to respondent, -seems to be supported by substantially all the evidence. The evidence belittling the service, given by some witnesses on the part of respondent, though very persuasive, apparently, with the trial court, seems to have, as in our judgment it well might, almost fatally discredited their testimony with the referee. Hackett, who was evidently the master spirit in respondent’s behalf for some three years after the service commenced, during wbicb the most burdensome part was performed, and the only one wbo really knew enough about the' situation during that period, to be able to appreciate the nature, extent, and value of the service, had no hesitancy in agreeing, substantially, with appellant, except as to his having made an express promise on behalf of the bank, or had in mind the idea that appellant would be entitled to pay. He put the value of the services of appellant in managing the Brownell business at some $40 per month in excess of the amount paid at any time by the company, and it must be remembered that for a large part of the time there was no compensation from that source. He placed the value as to respondent quite as high, if not higher than the referee. His evidence shows that respondent’s officers, other than himself, did not know, except in a general way, about the services, and the evidence of such officers corroborates that. So to the extent that the referee found appellant’s services were quite valuable to respondent, especially from some time in 1902 tO' about the close of 1905, there is no clear preponderance of evidence against it, or really any very credible evidence.

From the foregoing we have these verities: (a) Appellant was requested on behalf of respondent to perform for it services; (b) he complied with such request continuing his labor till the task assigned to him was ended; (c) his services were very valuable to the respondent. From such circumstances there arises, as matter of law, a presumption of fact that the services were performed under contractual relations. It is a mistake, in the technical sense, to speak of the contract as one implied bylaw. There are such contracts. They arise where-there is a legal duty to respond in money which by a legal fiction may be enforced as upon an implied promise. In such case there is no element of contract strictly so called. There is only the duty to which the law fixes a legal obligation of performance as in case of a promise inter partes. So it is called in the books a qmsi-contract. There are implied contracts m tbe strict sense of tbe term. In this case we are dealing with tbe subject of implied contracts in sucb sense. Sucb a contract requires, tbe same as an express contract, tbe element of mutual meeting of minds and of intention to contract. Tbe two species differ only in methods of proof. One is established by proof of expression of intention, tbe other by proof of circumstances from which tbe intention is implied as-matter of fact. Tbe implication arises upon legal principles, and is conclusive in tbe absence of something efficiently displacing it, as a presumption of law. Unlike tbe latter, it being an implication of fact though springing into existence as matter of law, it is rebuttable. 15 Am. & Eng. Ency. of Law (2d ed.) 1078.

The general rule is that if a person performs valuable services for another at that other’s request, tbe law implies, as-matter of fact, tbe making of a promise by tbe latter and acceptance thereof by tbe former to pay tbe one performing the service tbe reasonable value thereof. Wheeler v. Hall, 41 Wis. 447; Kelly v. Houghton, 59 Wis. 400, 18 N. W. 326; Link v. C. & N. W. R. Co. 80 Wis. 304, 50 N. W. 335. If one merely accepts services from another which are valuable' to him, in general, tbe presumption of fact arises that a compensation equivalent is to pass between tbe parties, and tbe burden of proof is upon tbe recipient of tbe service to rebut-sucb presumption if be would escape from rendering sucb equivalent. Tbe burden may be much more easily lifted in sucb a case than in tbe case of there being a request for the-performance as in this case. That is well indicated by the-logic of Link v. C. & N. W. R. Co., supra.

Thus here we have a situation, so far, of there being a presumption of fact, and a pretty strong one, of a mutual intention that there should be an exchange of contractual equivalents between the parties. Tbe referee found sucb fact and, in effect, that the presumption was not successfully rebutted by respondent.

At tbis point we have a significant infirmity in tbe court’s logic. Tbe case in band was likened to one where there has been no request for tbe performance of the service; only an acceptance, complicated with such circumstances as to prevent tbe inference of fact in favor of compensation arising. Ames v. Lamont, 107 Wis. 531, 534, 83 N. W. 780.

Having, without warrant it seems, overturned tbe finding of tbe referee as to tbe services having been performed upon request, tbe court failed to reach a point where tbe burden was ■cast on respondent to rebut tbe strong prima facie case. With that error to start with, tbe road to tbe result reached was not •so difficult to logically travel as it otherwise might have been.

Hid tbe referee decide against tbe clear preponderance of tbe evidence in bolding that tbe respondent failed to efficiently rebut tbe presumption of fact in appellant’s favor arising from tbe verities heretofore mentioned, which were, as we have seen, too strongly entrenched in tbe evidence to admit of their being properly disturbed on tbe review ?

In view of what has been said it would seem that the question last suggested might well be answered without any discussion. If the errors already referred to bad not been committed, doubtless such question would have been answered by tbe trial judge in favor of appellant. We will refer to tbe more significant circumstances upon which tbe conclusion was reached.

As we have seen, tbe findings by tbe referee efficiently condemn many of tbe conclusions as to tbe existence of circumstances indicating that it was supposed by tbe parties, tbe services were gratuitously performed. Two were of much significance, viz.: (a) tbe services were performed by request of defendant, through its managing officers, and not for ITack-ett personally; (b) such services were very valuable to respondent.

One other matter referred to by tbe court is that tbe services were substantially as valuable to appellant’s bank as to respondent. If tbat were so tbe fact would still remain tbat appellant was not under obligation to serve respondent, while be was bis own bank, but tbe fact is tbat bis work was of vastly more importance to respondent tban to any other party, — even for tbe Brownell Company. We shall not go into detail on this. Suffice it to say, tbe interest of respondent in having tbe work performed, which appellant did, appears so much greater tban tbat of tbe Tigerton bank as to make tbe latter appear quite insignificant.

Again tbe suggestion was in effect made tbat appellant received full pay from tbe Brownell Company. But tbe fact seems to be tbat be received no pay whatever for tbe first six months or so and none commensurate with tbe value of bis services for tbe next two years or thereabouts, and none for scime two years and a half thereafter; while, according to tbe testimony of tbe witness who seemingly was tbe best judge from every point of view, bis services in tbe outside work were worth, during tbe last two years, $50 per month.

Another circumstance referred to is tbat for most of tbe time appellant was a stockholder and, as said in tbe findings but not in tbe decision and opinion, be bought tbe stock for and made a profit. If tbat bad any sound basis in tbe evidence it would be very persuasive though far from conclusive. We are unable to find such basis. As we read tbe evidence tbe stock was purchased solely to enable appellant to make bis .work of supervision in tbe interest of respondent, successful. It seems tbat is tbe effect of appellant’s and Hackett’s evi- ' dence. Tbe former did not put but twenty per cent, of tbe par value of tbe stock into tbe venture. He did not, in reality, furnish any of tbe money. It was done by tbe bank through Haekett. He took appellant’s note with tbe stock as collateral, then turned tbe matter over to tbe bank where it remained for some two years and a half, appellant paying interest to tbe amount of $187, when tbe stock was sold, netting tbe face of tbe note, and tbe money was turned in to take it up. Thus be was out tbe $187 and interest thereon, amounting in all by tbe time tbe second turn was made to about $210. Again be took tbe stock and in a few months sold it, tbe carrying charge being about $35 as near as we can figure from tbe evidence. Tbe second sale was at an advance over tbe purchase of $200, thus leaving him a loser to tbe amount of ■some $40. He summed up tbe matter by saying, “I was a little out on tbe stock,” which seems strictly true. When be first took tbe stock be requested Ilackett, evidently as representing tbe bank, to bind himself to share half tbe loss, if any occurred, showing that loss rather than profit was thought to be within reasonable probabilities. Tbe amount paid by tbe Brownell Company could not have much, if any, more than offset bis expenses during tbe five and one-half years. He testified that Iiackett created tbe salary really to take care of tbe expense incident to tbe situation filled by him and we ■do not find that denied, effectively, anywhere.

Tbe further fact is referred to that respondent paid appellant $125 in 1905 as a gratuity, be making no claim for services, and that it was ample to compensate him for all be did specially for respondent. Tbe finding of tbe referee was that such payment was made to apply on services, or expenses, or both. We are unable to find any warrant for disturbing that finding. Tbe idea that it was a fair equivalent for appellant’s services seems to be contrary to tbe evidence of Hackett and to all tbe credible evidence. It is based on that of Hideout and Edwards, particularly tbe latter. Tbe fact that they gave evidence of that character, as heretofore suggested, greatly impaired their credibility. Tbe only excuse we can discover for their giving such testimony is that they knew very little about tbe real nature of appellant’s services, which, as before said, pretty clearly appears to be tbe fact. We will assume that they testified honestly with tbe light they bad. That is as far as we can go in face of tbe fact, quite apparent from tbe record, that appellant’s expense up to tbe time tbe $125 was paid must have been, quite as much, if not more than ■that sum.

Again tbe fact is given much significance that there was •such a community of interest between respondent and appellant’s bank that it was appellant’s moral, if not his legal duty, to serve respondent, as he did, and without pay. The idea that •a man of appellant’s conceded ability working under a very small salary for a bank, which was, in a legal sense, wholly separate from respondent, and having, to a considerable extent,different stockholders, had any moral or legal duty to work ■over hours performing services of a reasonable value of more than two thirds all paid him for full time at his bank, especially to do such work for the wealthy aggregation constituting the' respondent, seems to be far-fetched. In our judgment the reasonable inference is rather that appellant expected that an institution of the dignity of respondent and a body of men of the evident financial standing of its stockholders would not only be willing to but would insist upon paying him fairly for his services; that he expected pay, and •that respondent by its responsible officers, especially the manager, Haekett, expected to render pay, if they thought about the matter at all. Perhaps they did not think about it, but that does not relieve respondent from responsibility.

True, Haekett, who really did all the business with appellant -on behalf of respondent for the first two or three years, testified, in effect, that he did not have it specially in mind during the time the services in question were being performed that there would be any expense on account thereof against the bank. However the legal presumption of fact, arising from the request for and performance and value of the services to respondent, is not rebuttable by mere evidence that Haekett ■or any one else connected with the bank did not think of the subject of compensation. Neither party may have specially thought about the matter and yet the presumption in favor of -appellant would stand if the situation was such that, had the parties turned tbeir attention thereto in view of tbe law, there would or ought to have been mutuality of thought in respect to the matter.

It is further suggested that appellant made no definite claim for compensation till some five years after his service commenced. That was given great weight in favor of respondent. It might have been given such weight by the referee and may have been. However, it is short of being of sufficient weight to warrant setting aside his finding in view of the fact that the claim for compensation was made quite promptly after the indebtedness of the Brownell Company was paid off. Till that time appellant may have thought he was not in a very good position to determine, himself, how much his services were reasonably worth. The fact that he finally aided inclosing the matter up by inducing parties to put a large amount of new capital into the company and, by his personal responsibility, assisting in obtaining money to make the final payment, and that too after he ceased to expect any profit on his stock, if he ever did, which does not seem to be the case, thus-putting himself in the breach, finally, to end his task, is hardly explainable upon any other reasonable theory than that he-expected in the end, and had reasonable ground to expect, pay for his work by respondent.

The only other suggestion we will mention,- given significance by the trial court, as indicating that appellant’s services-were intended to be gratuitous, or at least that he was in no-position to claim compensation therefor, is that on one or two-occasions he acted adversely to respondent in reference to its-relations with the Brownell Company. To our minds the court drew that conclusion from the evidence without discovering the real ground of respondent’s conduct as the referee might well reasonably have viewed it. It appears that for some two or three years prior to the time the court referred to, appellant had been pursuing a policy, determined upon by him and respondent’s cashier, which they jointly supposed would, in due time, rescue it from all danger of loss and at the same time save the Brownell Company from bankruptcy, which was a matter of some interest to the bank. Pursuant to that policy he had worked to induce the putting of new capital into the company, had carefully conserved all its assets, and had aided materially by the operations of the Tiger-ton bank and to the profit of the proprietors of respondent as stockholders thereof. After the lapse of such time Hackett’s connection with respondent and the Tigerton bank was severed. The relations of respondent’s officers with him became, evidently, somewhat strained, especially on account of the extension of credit to the Brownell Company. There was dissatisfaction as regards the status of that indebtedness and the slowness with which the prospects of final liquidation had brightened. In that situation such officers thought to change the policy to one of coercion. To that appellant objected, seemingly, because he, under the direction of Hackett, had, as he supposed, committed himself and respondent to a friendly course, thinking that would, in the end, be the best way to bring about the result desired. So he objected, rather strenuously, to the attempted change, but in no spirit of hostility as it seems. Certainly, as appears, he was finally not only permitted, but rather encouraged, probably urged to keep on with the plans theretofore pursued, which he did, resulting in respondent being paid the balance due it June 29, 1908, some $14,000, out of a loan obtained for the company by his efforts, and partly, as before said, upon his responsibility, and thus the long campaign, commenced over five years before, was brought to a successful termination. In that light, which is at least a reasonable view, and so should be taken in support of the referee’s finding, the incidents given so much dignity below against appellant do not appear important.

It seems needless to add that though the inferences which the court drew from the evidence were not so wholly without warrant, that had the findings of fact been those complained of now perhaps they could not have been set aside as against the clear preponderance of the evidence, it is quite clear that had the trial court made, as an original matter, the findings which the referee made, they would easily have stood the judicial test on appeal. It is from that standpoint the case must be viewed.

The question as to whether the reasonable value of the services is against the clear preponderance of the evidence needs no extended treatment in addition to the foregoing. There seems to be no question but what the time, five years and a half, as fixed by the referee, is right j none but what the value of the services in the whole, as fixed by Hackett who evidently knew most about the matter, is moderate. The difficult question for the referee was to determine how much was the reasonable value of the services chargeable to respondent under all the circumstances. He considered that the chief purpose of appellant’s efforts was to save respondent from loss and that the purpose was fully accomplished. There is no room in the evidence to reverse that, as we have seen. The record shows that in the early part of the period of service the active agent in managing respondent, regarded the bank to be menaced by danger of losing some $10,000 or more, unless some such policy was adopted as the one resorted to. The testimony of other officers who did not know much about the difficulties, and perhaps were designedly kept -in ignorance thereof by the cashier, that they regarded the bank secure, and on that account placed little value on appellant’s services, cannot clearly outweigh the evidence supporting the findings. On the whole, the conclusion of the referee that about half the total value of the services, as sworn to by Hackett, or $25 per month, without expenses, which must have been considerable, should be charged to respondent, seems to have at least such fair support in the evidence as to leave no reasonable ground for holding such conclusion to be against the clear preponderance thereof.

By ihe Oouri. — The judgment and order on wbicb it is based are reversed, and the cause remanded with directions to confirm the referee’s report and render judgment accordingly.

KerwiN and TimliN, JJ., dissent.