Dunlop v. Schubert

Newman, J. The refusal to set aside the judgment was a manifest abuse of discretion. The judgment for so large a sum was, in the circumstances, a clear fraud upon the defendant. It is not tolerable on any permissible casuistry. The bill of services rendered by the plaintiff to the defendant cannot be deemed as merely tentative and a proposition for compromise. On the other hand, on its face, it represented the extent of the plaintiff’s claim, and the sum which he was willing to take for his services. It does not appear that he had, by mistake, made his estimate of the value of his services lower than they were worth. The bill was the result of consideration. Prima facie, it represented the legitimate amount of his claim. He should abide .by it unless it was the product of a mistake. The chance offered by the defendant’s default in the action did not, in the least, justify the use he made of it to increase his charges sixfold. Nor was it inexcusable negligence in the defendant to trust 137 that the plaintiff would take judgment for the amount of his bill only. That the judgment exceeded that sum might well be a surprise to him. By the OouH.— The order of the superior court of Milwaukee county is reversed, and the cause remanded with directions to set aside the judgment and default and permit the defendant to defend the action.