Kelm v. Woodbury

SiebecKER, J. Tbe appellant asserts that tbe evidence on tbe question of a settlement by tbe parties of all matters in controversy clearly establishes that after plaintiff’s discharge from defendant’s employ such a settlement was made and that tbe plaintiff accepted $65, the amount agreed upon by tbe parties, in full payment of tbe amount due him under such settlement. Tbe plaintiff denies that tbe settlement was made and claims that at tbe time of tbe negotiations for a settlement be claimed and demanded a sum for satisfaction of bis damages for defendant’s breach of contract far in excess of tbe $65 be received as avails of tbe check defendant drew in bis favor on that day and which was subsequently delivered to plaintiff’s wife, and that tbe $65 so received was intended to apply as wages due him under their contract and was paid him to then vacate and remove from tbe farm. This claim of the plaintiff is denied by tbe defendant, who testifies that be and tbe plaintiff, in tbe presence of tbe witnesses Pellett and Reigert, negotiated on October 15, 1910, at tbe farm, to settle all matters in controversy between them arising out of tbe transactions involved in this litigation. It is shown that these four men did meet as stated and that a settlement of tbe diffei’ences between tbe plaintiff and tbe defendant was undertaken and discussed by them all. Tbe evidence of tbe defendant and of tbe witnesses Pellett and Reigert is clearly to tbe effect that tbe plaintiff in tbe beginning of tbe negotiations demanded $200 from tbe defendant to satisfy bis demands and that tbe defendant firmly asserted that be owed him nothing in- excess of tbe balance due plaintiff for services at the contract rate and that this did not exceed $40, that tbe plaintiff during,tbe negotiations reduced tbe amount of bis demand to $75, that thereupon tbe witnesses suggested to tbe parties that they compromise by dividing tbe difference between tbe two sums, and that tbe parties then agreed upon $65 as tbe amount and then and there assented thereto, and that tbe defendant drew a check on bis bank for this amount, payable to 503 tbe plaintiff’s order, and left it witb tbe witness Eeigert with directions to deliver it to tbe plaintiff wben be vacated and rer-moved from tbe farm. There is no .dispute that tbe check was delivered to tbe plaintiff’s wife on tbe day tbe plaintiff vacated tbe farm and that tbe plaintiff theréíifter received tbe proceeds thereof. Tbe record discloses that tbe issue of a settlement was tbe principal one litigated upon tbe trial and that tbe defendant’s counsel submitted a formal finding to tbe court and requested that tbe court find as fact that tbe settlement was made and carried out as the defendant claimed throughout tbe trial of tbe case. Tbe court did not adopt this requested finding or its equivalent, but - wholly omitted to make a finding on this issue and made findings in tbe case as though no such issue bad been presented,and litigated. Tbe findings of tbe court, tbe details of which appear in tbe foregoing statement and upon which tbe court found in plaintiff’s favor, embrace tbe other issues litigated, and tbe court awarded plaintiff recovery for tbe amount of damages found. It is difficult to perceive bow this omission could occur, under tbe circumstances attending tbe trial and in view of tbe actual proceedings that took place, since tbe issue, whether there was such a settlement or not, was apparently tbe principal contest at tbe trial. Tbe court may have concluded that tbe findings made amounted by implication to a finding that there was no settlement as claimed by tbe defendant. If so, this is erroneous, for no such implication can be indulged in tbe light of tbe record as presented. Tbe result is that there was a failure to comply witb tbe provisions of sec. 2863, Stats. (1898), which requires, in trials of questions of fact by tbe court, that its decision shall be in writing and shall state separately tbe facts found and tbe conclusions of law thereon. This record is wholly barren of anything showing that tbe court determined this issue and it must be so treated. It is obvious that this issue was fully tried and submitted and should have been determined by an express finding of fact, 504 either affirming the settlement as alleged and claimed by the defendant, or denying it, according to the weight of the evidence. Fogo v. Boyle, 130 Wis. 154, 109 N. W. 977; Young v. Miner, 141 Wis. 501, 124 N. W. 660, and cases cited. In this state o? the case this court is called upon to determine whether the state of the case demands a reversal of the judgment and a new trial, or whether the evidence so clearly preponderates in favor of the claim of either party upon this issue as to require that judgment be directed in favor of the party entitled thereto upon the record. ' Brown v. Griswold, 109 Wis. 275, 85 N. W. 363; Closuit v. John Arpin L. Co. 130 Wis. 258, 110 N. W. 222; Jansen v. Huerth, 143 Wis. 363, 127 N. W. 945; Damman v. Damman, 145 Wis. 122, 128 N. W. 1062. An examination of the record persuades us that the preponderance of the evidence is clearly to the effect that the parties settled all their differences involved in this case and that the trial court should have found that there was an accord and satisfaction, as alleged by the defendant, which discharged the defendant from all liability arising out of the transactions embraced in the issues presented by the pleadings and the evidence. This result necessitates reversal of the judgment appealed from and entitles the defendant to judgment of dismissal of the action and for costs. By the Court.- — -The judgment appealed from is reversed, and the cause remanded with directions to the trial court to award judgment dismissing the plaintiff’s complaint.