| Wis. | Jun 15, 1870
Lead Opinion
This is an appeal from an order setting aside the report of a referee, and referring the case to new referees for a new trial. It had been referred because it involved a long account between the parties. The trial was long and the case is voluminous, containing two hundred and forty-six pages.
The first is on page 16 of the printed case. The plaintiff, in testifying, stated that half of his time during eleven years was devoted to the business of the defendant. The case does not show that the question was objected to, and, under the rulings of the referee, not answered. But it would appear that after the evidence was in, it was “ objected to,” and the “ objection sustained.”
If the testimony was designed to prove other services, not included in the' bill of particulars, in this general manner, it was objectionable for that reason. If, however, it was designed merely to prove the length of time occupied in the services mentioned in the bill, there would seem to be no objection to it. But the ruling of the referee certainly affords no ground for a new trial. Because, the testimony having been given, and appearing in the report, if it was admissible for any purpose, the circuit court should have considered it, and given it whatever effect it was entitled to in producing a change or modification of the report.
Indeed it would seem to be advisable in such trials before a referee, as a general rule at least, to take down testimony even though ruled by him to be inadmissible, so as to avoid the necessity of a re-trial if the court should be of a different opinion.
The next is found on page 25 of the case. There was in the plaintiff’s bill of particulars an item of the date of July 27, 1863, “ small and miscellaneous business done,” with no amount charged. The plaintiff offered evidence as to what the small miscellaneous business was, and as to its value, which was-excluded.
The' plaintiff then asked leave to amend his bill of particulars on the trial so as to make this item more definite and certain, which was refused. This court has favored a very liberal rule as to allowing, even on the trial, upon just terms, such amendments as are essential to substantial justice between the parties. But it is a discretionary power; and in a case of this kind, even though the circuit court might think it would have been more proper to allow the amendment and admit the proof, yet it ought not to set aside a report, and order a new trial for a refusal to allow it to be done in respect to an item trifling in amount, and where it is obvious that it was much less than the necessary additional expense of a re-trial, even to the party in whose favor granted.
The order in this case does not profess to have been based upon any error in the rulings of the referee in refusing to allow the plaintiff to amend, though, on setting aside the report, the court granted such leave. But as we have deemed it incumbent upon us to examine the exceptions so far as to determine whether the order could be sustained upon other grounds, we have alluded to this exception.
The next exception to the exclusion of evidence is to the refusal of the referee to allow the plaintiff to prove by his own testimony a general retainer by the defendant in all his business. The suit was to recover for professional services rendered for the defendant, and for money paid to defendant’s use. Annexed to the complaint was a bill of particulars. The plaintiff was permitted to amend his complaint after it was filed, setting forth a claim for an annual counsel fee
The next exception taken is to the exclusion of certain questions asked professional experts, who were called by the plaintiff to prove the value of his legal services in attending to suits specified in the bill of particulars. Mr. Emmons was asked the questions on page 75 of the printed case, as to what he would estimate the plaintiff’s services worth upon a sup-posititious case ? Assuming the form of the question to be correct, we cannot see how the plaintiff was prejudiced by the ruling of the referee, when the witness just afterward, on pages 77 and 78, did state fully, in answer to questions put him, the value of plaintiff’s services. Eor instance, in respect to the Hawley suit against the city of Milwaukee, about which the witness had been previously interrogated, he said: “ If there was $25,000 involved in that suit, and by the efforts and professional labors of any man they were saved, I would regard the services as worth anywhere from one thousand to three thousand dollars, depending upon the amount of labor which he had performed.” And so in regard to the Lain and Shepardson litigation, he was permitted to state the value of the plaintiff’s services according to his understanding of the labor performed, although when the question was first asked him it was objected to and ruled out. But inasmuch as the witness subsequently answered the question, which covered the whole case, and stated what, in his opinion, the legal services were worth, the previous ruling of the referee, even if erroneous, became immaterial.
And the same answer, we think, must be given to the exceptions taken to the ruling of the referee in sustaining objections to questions put to the witness Mr. Arnold. He was asked what he would estimate the plaintiff’s services worth in the Hawley case upon
These observations dispose of all the material exceptions taken to the rulings of the referee in excluding competent evidence. In our judgment, they did not authorize the circuit court to set aside the report and order a new trial. The circuit court, we think, should have reviewed the report, and the questions of' law and fact arising upon the exceptions to the same. Of course, in the present attitude of the case, this court cannot review the exceptions, they never having been considered and passed upon by the court below. We can only reverse the order of the circuit court setting aside the report, and remand the cause for the action of that court upon the report and exceptions.
By the Court, — Order reversed.
Rehearing
It seems to be assumed, on the motion for a rehearing, that the court has decided in the above opinion, that an attorney could not recover for professional counsel and advice under any circumstances. But this is a mistake. What the plaintiff proposed to show was, that some time in the year 1853 he was retained generally by the defendant as his attorney in all of his business, but without any price being stipulated therefor. He did not offer to show the amount of professional advice given, or what were the specific services rendered aside from those included in his bill of particulars, so that the defendant could meet the claim by proof as to what they were reasonably worth. It was not proposed to show that he gave professional advice in any particular matter for which he had the right to claim a proper compensation, or that he had declined acting as counsel for others against the defendant, and thus lost the opportunity of performing services for which he might possibly have received a reasonable fee. The bill of particulars doubtless embraced all the actual services rendered for which the plaintiff made any charge at the time. And if he occasionally gave the defendant any professional advice in his business matters, it must be assumed that he gave it either without any intention to charge therefor at the time, or that he covered it in the charges made for services referred to in his account. At all events, he did not attempt to show what particular service he did perform, but only that he was retained generally by the defendant, and frequently gave the defendant counsel and advice in minor business matters, for which no charge was made at the time. It was then proposed to show that the plaintiff was entitled to recover $1,000 per annum as an annual counsel fee from 1853 to 1868, inclusive, in
Motion for rehearing denied.