Bloomer's Estate, In re

• Decision Date: 07 January 1958
• Parties: In re ESTATE of John F. BLOOMER, Deceased. Victor W. BLOOMER, Ex'r, Appellant, v. Homer H. BENTON et al., attorneys practicing their profession under name of Benton, Bosser, Fulton, Menn & Nehs, Appleton, Respondents.
• Court: Wisconsin Supreme Court

Page 531

87 N.W.2d 531

2 Wis.2d 623

In re ESTATE of John F. BLOOMER, Deceased.

Victor W. BLOOMER, Ex'r, Appellant, v. Homer H. BENTON et al., attorneys practicing their

profession under name of Benton, Bosser, Fulton,

Menn & Nehs, Appleton, Respondents.

Supreme Court of Wisconsin.

Jan. 7, 1958.

Joseph Witmer, Appleton, for appellant.

Benton, Bosser, Fulton, Menn & Nehs, Appleton, pro se.

FAIRCHILD, Justice.

1. Bill of Particulars. In December, 1956, the executor moved that the claim be made more definite and certain and that a bill of particulars be presented. The motion was denied and the claim set for hearing on February 14, 1957. The claim contains 16 typewritten pages in which the items of service and time spent in rendering each item are set forth in chronological order. The executor asserted that the services rendered to the partnership should be separately designated and that the various items should be grouped according to the particular matter of business being worked upon. At the hearing on the motion claimants suggested that the executor adversely examine Mr. Bosser before trial, but the executor did not do so. We think the trial court did not abuse its discretion in denying the motion. We are also of the opinion that had the executor proceeded by adverse examination before trial, as suggested the points at issue could have been tried out in considerably less time and with more clarity.

2. Sufficiency of evidence. Mr. Bosser testified that claimants had a system of recording services under which entries are made daily on ledger sheets kept separately for each client, stating the type of service rendered and the time spent. Mr. Bosser produced the sheets kept under Mr. Bloomer's name, testified generally that he had rendered the services set forth and that he had dictated the entries. They were received in evidence. They were admissible and were prima facie evidence of the furnishing of the services. Sec. 327.24, Stats. Mr. Keller's testimony was a sufficient basis for computing the reasonable value by multiplying the number of hours spent by $10.

Accordingly it is unnecessary to decide whether the bar association schedules, admitted without objection would support the finding. They would not require a different finding. Neither is it necessary to decide whether the judge's own knowledge as a lawyer is a basis for determining the value of a lawyer's services as stated in Re Will of Gudde, 1951, 260 Wis. 79, 86, 49 N.W.2d 906. See also Larscheid v. Kittell, 1910, 142 Wis. 172, 177, 125 N.W. 442, and Rubekeil v. Bowman, 1920, 171 Wis. 128, 176 N.W. 854.

3. Work done on the affairs of Mrs. Bloomer. Some of the services were rendered in preparing Mrs. Bloomer's will and in connection with her income taxes. Under the circumstances, it is not presumed that Mr. Bloomer acted only as her agent in requesting that these services be rendered. Thus his request gave rise to his liability to pay. Benton v. Stadler, 1931, 203 Wis. 536, 234 N.W. 739.

4. Work done on loans. Some of the services were rendered in examining abstracts on property of people borrowing money from Mr. Bloomer and in preparing the mortgages and other papers for execution by the borrowers. The executor argues that the borrowers should have paid for these services. While borrowers often agree with a lender that they will pay the fees of the lender's attorney, the services of the lender's attorney are nevertheless for his protection. There is no evidence in this case either of an agreement by the borrower to pay the fee nor of an agreement by the attorney to look only to the borrower for payment.

5. Statute of Limitations. As amended, the claim covers six years preceding Mr. Bloomer's death. The executor argues that items more than two years before his death are barred. Sec. 330.21(5) bars after two years, 'Any action to recover unpaid salary, wages, or other compensation for personal services, except fees for professional services.' The executor asserts that the exception of fees for professional services is unconstitutional and that action for such fees is barred after two years. In Re Estate of Zeimet, 1951, 259 Wis. 619, 49 N.W.2d 924, it was held that the exception would be severable if invalid and would not render the two-year limitation invalid. Thus the question of validity of the exemption was reserved.

In one recent decision there is language which suggests that the only cause of action barred by sec. 330.21(5) may be those for compensation for services rendered by employee to employer. 'Under the statute referred to, in view of all of the circumstances in this particular case, service would mean work done by one person at the request of another and would refer to a relationship of master and servant.' In re Estate of Fredericksen, 1956, 273 Wis. 479, 78 N.W.2d 878, 879. In other opinions it seems to have been assumed that it was immaterial whether the relationship was that of employer and employee. See Mead v. Ringling, 1953, 266 Wis. 523, 64 N.W.2d 222, 65 N.W.2d 35, and In re Estate of Schaefer, 1951, 261 Wis. 431, 53 N.W.2d 427. If the statute barred only those claims for compensation arising out of employment, the exception of fees for professional services would have accomplished nothing. For the background of sec. 330.21(5), see Ch. 574, Laws of 1945, Resolution No. 25S, 1945 session, 340AG 139, Republic Pictures Corporation v. Kappler, 8 Cir., 1945, 151 F.2d 543, 162 A.L.R. 228, affirmed, 1946, 327 U.S. 757, 66 S.Ct. 523, 90 L.Ed. 991; Bill No. 532S, 1947 session.

Whatever the final interpretation of sec. 330.21(5), we conclude that the legislature has the power to impose different periods of limitation on causes of action for compensation of employees, for compensation of non-employees for nonprofessional services, and for fees for professional services. A statute is presumed to be constitutional. State v. Kerndt, 1956, 274 Wis. 113, 115, 79 N.W.2d 113. Periods of limitation are subject to a relatively large degree of legislative control. Chase Securities Corp. v. Donaldson, 1944, 325 U.S. 304, 314, 65 S.Ct. 1137, 89 L.Ed. 1628. The legislature may have considered that because wages, salaries and other forms of compensation such as commissions and bonuses paid to employees are paid regularly at frequent intervals a valid claim for such compensation is likely to be sued on if unpaid within a short period of time, while valid bills for fees for professional service normally are more often permitted to run for a longer period without suit. If it be eventually determined that the legislature placed the claims of independent contractors for non-professional services in the same class for this purpose as wage claims, this court cannot say that the legislature exceeded its powers. All these claims have in common the fact that they arise out of personal services rendered by claimant, but it cannot be denied that they differ considerably in the promptness of payment, customary method of collection, and the ordinary way in which the amount due is determined. There being some conceivable facts which may be thought to justify difference in treatment, it is not for the court to say whether the choice of two years for barring one class of claims and of six years for another is the wisest or most desirable choice. There being such basis for difference in treatment, an alleged debtor cannot assert that he is denied equal protection of the law because after two years the law protects him from one type of claim, but not from another.

We have examined a number of decisions involving the validity of statutes of limitation. For the most part the question was whether the period allowed was so unreasonably short as to deprive persons of property rights. The only cases we have been able to find where discrimination between causes of action has rendered a statute of limitation invalid have related to those statutes which discriminated against rights arising under federal law. Republic Pictures Corporation v. Kappler, supra; Rockton & Rion Ry. v. Davis, 4 Cir., 1946, 159...