Briggs v. Hiles

Lyon, J. It is not denied that a trial of one of the issues in the action will necessarily require the examination of a long account, but the contention of defendant is that this issue should not be referred until the other issues are decided, because, should it be determined that there was a special contract between the parties fixing the compensation to which plaintiff is entitled for his services, it wfill not be necessary to examine the account. True, such would be the result of a determination of the issue on the alleged special contract for the defendant, but the trial court is not required thus to try the issues separately, although probably it may do so in its discretion. When there is an issue in the action the determination of which will require the examination of a long account, the court may send that issue, or any or all the issues in the action, to a referee to hear, try, and determine. Such are the plain provisions of the statute. R. S. secs. 2864, 2865. Hence it was said by the late Mr. Justice Taylob, in U. S. Rolling Stock Co. v. Johnston, 67 Wis. 182, that “ it has been repeatedly decided by this court, and other courts under similar laws, that it is no objection to a compulsory reference of a case in which a long account must be proved by the plaintiff in making out his case, that the defendant denies the existence or validity of the contract upon which such accounts are founded. Dane Co. v. Dunning, 20 Wis. 210; Monitor I. W. Co. v. Ketchum, 47 Wis. 177; Welsh v. Darragh, 52 N. Y. 590; Kingsley v. Brooklyn, 1 Abb. N. C. 108; Cowden v. Teale, 6 Hun, 532; Schermerhorn v. Wood, 4 Daly, 158.” To these cases may be added Cairns v. O'Bleness, 40 Wis. 469; Littlejohn v. Regents, 71 Wis. 437, — which are to the same [573] effect. In the latter case some limitations on tbe rule are suggested by Mr. Justice OrcroN, but tbis case is not within them. The above cases settle the rule and sustain the reference. It will be entirely proper, however, for the referee, in his discretion, to try the issue as to whether the services in question are covered by a special contract, as alleged in the answer, before entering upon an examination of the account ; and, if he finds that issue for the defendant, he may base his report thereon, without stating the account for services. By the Court.—Order affirmed.