Raipe v. Gorrell

Dodge, J. 1. Sufficiency of the general exception to the court’s order of confirmation, in order to enable review of the specific exceptions taken to the referee’s findings, is challenged. While such review cannot be had in absence of any exception to the order of confirmation (Momsen v. Atkins, ante, p. 557), we have recently held, at least impliedly, that a general exception will suffice (Hinz v. Van Dusen, 95 Wis. 503, 506; Small v. Prentice, 102 Wis. 257); although, as was said in Lemke v. Daegling, 52 Wis. 498, this court will exercise its discretion to refuse such review where exceptions to referee’s report are numerous, and it is uncertain what disposition the trial court may have made of some, and to reverse with directions to the court below to pass specifically on the exceptiohs. In this case we see no reason to decline to examine the exceptions to the referee’s findings, which were each and all effectually overruled by the order of confirmation. 2. The findings of fact are very imperfect, in that they seem to assert legal conclusions, rather than any facts. Neither the first nor second is a statement of any conclusion of fact reached by the referee from the evidence, and without them the judgment for plaintiff can be sustained only on the ground that a judgment will not be reversed if the evidence supports it. Wilkinson v. Wilkinson, 59 Wis. [641] 557. Whether such support esists we must ascertain, from the record as an original question. In a contract of hiring for a given time, if nothing be said and there he no custom, the employee is not entitled to compensation for time lost without fault of either party. Rendition of service is the consideration for promise to pay wages. McDonald v. Montague, 30 Vt. 357; Bast v. Byrne, 51 Wis. 531; Prentiss v. Ledyard, 28 Wis. 131. Such right to deduct for absences will not be lost merely by payment of salary at the stated periods. Some other acts or conduct are necessary to that result. It has, however, been held in this state, as well as elsewhere, that a surrender of such right is to be inferred readily. The practice is so nearly general, in.cases of employment by the year or by the month, not to impose upon an employee loss of wages for short absences, that such inference is likely to result in enforcing the real understanding of the parties. The case of Dickinson v. Norwegian P. Co. 101 Wis. 157, and the case therein cited of Prussing V. Co. v. Meyer, 26 Ill. App. 564, illustrate this tendency of the •courts. They both proceed upon the theory of settlement, and also on that of a practical construction of the contract by acts of the parties. A third principle upon which may be predicated surrender of the right at the end of the period ■of employment to withhold wages for time lost is that of voluntary payment. If one pays money to another voluntarily, without mistake or fraud, he cannot reclaim it. Custin v. Viroqua, 67 Wis. 314, 320; Deuster v. Mittag, ante, p. 459; Clarke v. Dutcher, 9 Cow. 674. Such principle controls the subject in hand if the evidence discloses a payment of the wages for the lost time specifically with the intention to make it as such, and not as a payment generally on the contract, and if not by mistake as to material facts. Such payment is voluntary, and the court will not allow the employer afterwards to change his mind, and either withhold it from subsequent wages or recover it back by suit. [642] In tbe present case there is much to support both a practical construction of the contract in. favor of the plaintiff’s contention, and to establish a payment of the wages for the week of absence in April voluntarily, under the rule above-stated. The letter of April 29, quoted in the statement of facts, written at the very time of plaintiff’s absence from work, bears no other construction than that the defendants did not intend to subject plaintiff to loss of salary by reason of that interruption. The words, “ I was under salary with the Mutual Life Co., but, the moment I went into the suit, that was stopped, and I had to look elsewhere for funds. "'The writer will not treat you so,” seem to us conclusive of the intention on the part of the defendants that the payment then made was intended for that week, and was made without any intention to reclaim it. Plaintiff certainly was entitled'to place that construction upon it, and, so doing, to adjust his business or personal expenses according to such reliance. This view was confirmed by the continued payments weekly, making deductions therefrom from time to time of other claims in favor of the defendants, but with no suggestion of any claim by reason of the loss of time. While those payments, of themselves, might not be conclusive, nor entirely inconsistent with the expectation that plaintiff would work an additional week, or would be deprived of payment for the last week in the year, yet they are far more consistent with the other theory, especially when they follow the letter above quoted. Especially significant was the remittance of December 10, accompanied by the letter-quoted in the statement of facts, which can bear no other construction than that all defendants’ claims against plaintiff were understood to be satisfied; that no others then existed. We are convinced that a preponderance of the evidence establishes that the week of absence in April has been paid for voluntarily and without mistake, and, as a result, that the last week of employment is not paid for except for643 $20.71, for which the judgment credits defendants. This branch of the judgment is, therefore, sustained by the evidence, and should stand, even in absence of any finding of fact. 3. The second finding quoted above probably indicates that the referee concluded that the alleged verbal agreement for allowance to the plaintiff of the twenty per cent, commission, less such as he might need to pay out for helpers and discount, was made. That probability is rendered practical certainty by the referee’s opinion; but again, there is no finding of such fact. The so-called second finding is nothing but a conclusion of law, except, possibly, as to the arithmetic. Here again, however, the parties being in direct conflict with each other, we think the preponderance of the evidence is cast in favor of the plaintiff’s claim by the several letters written by defendants. In the letter of May 21 defendants write: “ My contract is on a basis of sixty per cent., and that is all I can allow anybody, and, after allowing you twenty per cent, from that, it leaves me at a loss on your business thus far; but I do not intend to complain about that. I agreed to give you so much money for one year’s work, whether I make or lose.” In the letter of November 2 the defendants write: “"Why is it you give Davies ten per cent, when the contract is five per cent.? You see you have spoiled your own income there.” On November 2 he writes plaintiff’s wife: “ I have earnestly recommended that he allow his man Davies five per cent., instead of ten per cent., and Mr. "Williams five per cent., and then he has ten per cent, leeway. Now, suppose we discount the notes five per cent., he still has five per cent. . . . If he can get his helpers for ten per cent., he can make ten per cent, on every dollar he writes.” In the letter of November 18 the defendants write: “You must discount your notes when the application is completed, and settle with your helpers yourself. You have twenty per cent, to [644] go upon- besides your salary, and you must stand or fall upon that.” We do not overlook the language of the letter written by the plaintiff October 18, in which he says: “ But you see how conscientious I have been in keeping your proportion up to the highest mark, and not going over five per cent, or'ten per cent, on Dodgeville business.” Nor the explanations offered by the defendant. Taking all these into consideration, however, we cannot avoid the conclusion that the parties made an agreement such as contended for by the plaintiff. Defendants insist that there could have been no consideration for such an agreement for the reason that plaintiff was, by the original contract, required to devote all his abilities to the work; but it is apparent that at the time this additional arrangement was made he had found expenses unexpectedly burdensome. He had accorded, and was expecting to accord, the defendants hospitalities at his own house, and, in addition, he was yielding to the calls of the defendants to devote much attention to the keeping in force of old policies, which was evidently not the work contemplated by the contract, and which was less beneficial to him than the soliciting of new policies, for it diminished the likelihood of his earning the $100 bonus at the end of the year; it diminished the volume of policies upon which he would be entitled to commissions if a new contract was made for succeeding years; and it impaired the record of his office, which, obviously, from the correspondence, was a matter of some moment to him, he being anxious to make as large as possible a showing of development of business. Such consideration is entirely adequate for the slight increase of compensation. We therefore conclude that the evidence establishes plaintiff’s right to these commissions, and, as no complaint is made of the amount found due, which involves as well the amount of the allowance to the defendants on their counterclaim for payments in excess of the twentjr per [645] cent, to helpers and for discount, we may consider the allowance made by the second so-called finding justified by the evidence, and that the judgment is right, and should not be disturbed. By the Court.— Judgment affirmed.