Brand v. James

Oassoday, J. It is urged that the findings of the referee were defective and incomplete in failing to specifically find the value of the services of Stark & Brand; the agreement, if any, as to their employment and compensation; the agreement, if any, as to what the plaintiff was to receive for his services prior to the arbitration; whether-Williamson was authorized to make an agreement as to such compensation prior to arbitration, and to employ Stark & Brand on behalf of the defendant; what property, if any, the plaintiff had received from the defendant, and which should be applied upon his services; what amount of money, if any, had the defendant paid to the plaintiff prior to January 15, 1883, when the receipt was given for $3,000; what was the state of the account at that time between the plaintiff and the defendant, and the firm and the defendant; what would such account, if stated, show, and to state the same. Such findings were requested. Some of them, however, appear to , be embraced in the numerous findings made. Of course, Uhe very object of findings is to determine the material issues in a given case. There is no necessity, however, for -any finding upon or the determination of any immaterial is — 547 — sue. Thus, in Johnson v. C. & N. W. R. Co. 64 Wis. 425, it was beld, in effect, that an error in submitting a question to the jury for a special finding is immaterial, if the findings upon the questions properly submitted sustain the judgment. Erom this it seems that the determination of certain specific issues in a certain way may render other specific issues, otherwise material, immaterial. So the failure to determine a certain specific issue may not be renewable upon appeal, by reason of the way the other specific issues were determined and the result. Thus, in Clark Co. Bank v. Christie, 61 Wis. 9, the specific issue of accord and satisfaction was not determined; but the other issues were found by the jury in favor of the defendant, tvho obtained judgment. The failure to determine the question of accord and satisfaction was said to be favorable to the plaintiff, because “ it eliminated from the case a very material ground of defense to the action.” But, had the verdict on the other specific issues been the other way, and judgment entered for the plaintiff, such failure to determine would have been available to the defendant, provided, of course, he kept the record in a condition to present it for review on appeal. Here it was found by the tenth and eleventh findings, in effect, that there was a full payment, satisfaction, discharge, and settlement of all the matters in controversy, January 15, 1883. Of course, the correctness of these findings is open for review on this appeal by the plaintiff. But if they are sustained by the evidence, then, certainly, with the other ten findings made as above stated, they cover and include “ all claims of the plaintiff against the defendant for moneys advanced or services of himself or of' Stark & Brand, and all matters of difference between the plaintiff and the defendantfor such is the express language of one of those findings. In other words, such determination of such specific issues necessarily determines the whole con — 548 — troversy, and, if properly so determined, entitled the defendant to judgment, and thus rendered immaterial all other specific issues, as they were subordinate to and included in those thus determined. 2. It is said, in effect, that the findings improperly embraced the retainer of the plaintiff by the defendant, and his services for the defendant prior to the employment of Stark & Brand, as those matters were not in issue. But the defendant denied having ever retained or employed the firm, and, so far as the first cause of action is concerned, it was in effect so found. In establishing such genial, the defendant proved, and it was in effect so found, that the plaintiff’s retainer in the matters embraced in the first cause of action was long prior to the formation of the firm, and that there was no subsequent retainer or employment of the firm in such matters by the defendant. Besides, as the trial was by referee and reviewed by the court, it is not perceived that the plaintiff could be thereby prejudiced. The same is true respecting the admission of evidence of the plaintiff’s retainer and services prior to the formation of the firm. 3. The principal objection to the findings is that they are contrary to the evidence. It is claimed that in February or March, 1878, the plaintiff, as attorney for James, drew a power of attorney from James to Williamson, giving the latter full power to act for James in the matter of D. A. McMillan & Co., and to employ attorneys and counsel therein, in his discretion; that Williamson did employ Hyde, of Ereeport, to commence the suit there; that he verified the complaint; that he made a special agreement with the plaintiff, whereby the latter was to receive for his compensation a proportionate share of whatever was realized at the end of the litigation, the amount to depend upon the measure of success; that such arrangement continued down to March, 1880, when it was agreed between — 549 — the plaintiff and "Williamson that, for the services which the plaintiff had rendered up to that time, he should, at the end of the litigation, receive the sum of $5,000, subject to be increased if the results should be very favorable to the defendant; that the firm of Stark & Brand should be, and was then, retained in said McMillan litigation, and'were to receive a reasonable compensation for services to be rendered thereafter in that matter, and be paid therefor from time to time as the work progressed — the total amount of such compensation of the firm to be governed by the final results. The plaintiff testified, in effect, that to the best of his recollection these new agreements were talked over with the defendant and were understood and assented to by him. The defendant denied such authority of Williamson, and also the making of such new agreements and retainer. The view we have taken of the evidence in the record, after a careful examination, renders it unnecessary for us to consider the merits of that power of attorney or the scope and extent of Williamson’s authority under it as disclosed by the parol evidence of its contents and the purposes for which it was given, for the simple reason that we think the referee was justified by the evidence in holding, as he did, that all the matters in controversy in this action were fully paid, satisfied, discharged, and settled January 15, 1883. It appears from the defendant’s testimony, in effect, that a short time prior to that, and after all services had been performed, the defendant talked with the plaintiff in relation to his bill or services; that the plaintiff wanted $10,000 or $1,500; that the plaintiff said that he had not had anything; that the defendant asked him if he had not had the boat; that the plaintiff said nothing about Mr. Stark or Stark & Brand’s bill. Being unable to agree, they separated, and thereupon the defendant authorized W. 0. Conway to settle with the plaintiff. After-wards Conway — 550 — informed bim that he had settled everything, including the defendant’s claim against the plaintiff for the boat, and that the defendant on that settlement was to pay the plaintiff $3,000, which he did by furnishing Conway with a certified check for the amount. Conway testified, in effect, to having made the settlement with the- plaintiff; that they were engaged, backward and forward, from two' to five days in doing so; that the plaintiff claimed about $7,000; that James thought that the plaintiff ought to have $1,000; that in that settlement Conway offered the plaintiff $3,000, which at first he refused to take; that Conway claimed that the plaintiff had had a boat belonging to James worth $1,800, and sold it, and that Conway’s own note had been used to raise the money to pay for that boat; that the plaintiff made no claim of any separate bill of Stark & Brand, distinct in itself; that it was discussed how much he had done and what he had done before the arbitrators, of whom said Conway was one; that finally the plaintiff agreed to accept the $3,000; that the next morning he brought in the check; that the plaintiff sat down to write a receipt, and was specifying what the receipt was for, when he objected and said he did not want that kind of a receipt, that he wanted a receipt in full of all demands; that the plaintiff then wrote this receipt: “MilwauKee, January 15, 1883. Beceived of E. James, Esq., $3,000, in full of all demands against said James to date. M. II. BRAND;” that Conway then told him it was satisfactory, and handed him the check for $3,000; that in such “ final settlement there was no reservation or any conditions as to any distinct claim; ” that he, Conway, supposed they “ were paying him this money in full for all the demands to date, without any reservation whatever; ” that the plaintiff made none; that that settlement was made at the office of Stark & Brand; that Conway then told him that if he would ¡rack up all those papers and books and send them up to the defendant — 551 — it would close tbe matter; that the plaintiff said: “All right; I will do it.” The referee found that the books and papers were so sent a few days subsequent to the settlement. Such is some of the evidence on the part of the defense. It is strongly corroborated by other evidence which might be mentioned. From this evidence it appears that each party made claims at first to which the other did not accede; that the final agreement was by way of settlement,— compromise, — ■ essentially an accord and satisfaction. The findings were to that effect; and they -were, as we think, within the issues made by the pleadings. Besides, such evidence having been received without objection, the answer may be deemed amended in that particular, if not already sufficiently broad. It is true that there is considerable evidence and some circumstances favorable to the plaintiff’s theory; but it is not denied that a settlement was made and that the receipt was given on that settlement. That receipt was written by the plaintiff, and given “ in full of all demands against James to date.” This was in harmony with Conway’s testimony. Prima, faeie, the receipt covered and included the matters upon which this action is brought. No fraud or mistake is claimed. Ve must follow the well-established rule, and sanction the findings of the referee, who was in a better position to determine the facts than this court. By the Oourt.— The judgment of the circuit court is affirmed.