Brand v. James

• Decision Date: 14 December 1886
• Parties: BRAND v. JAMES.
• Court: Wisconsin Supreme Court

67 Wis. 541

30 N.W. 934

BRAND

v.JAMES.

Supreme Court of Wisconsin.

December 14, 1886.

Appeal from circuit court, Winnebago county.

Action to recover for legal services and disbursements.

The plaintiff is an attorney at law, and was a member of the firm of Stark & Brand, of Milwaukee, from October, 1879, to May, 1884. This action is to recover for legal services and disbursements rendered to and made for the defendant by the firm, between March, 1880, and December, 1882; and in and to which Stark sold and assigned his interest to the plaintiff before the commencement of this action. The complaint is upon three several causes of action: First, to recover $3,600 for services so rendered, and disbursements so made, during said time, in and about a suit which had been commenced in the circuit court for Stephenson county, Illinois, prior to March, 1880, growing out of the dissolution and settlement of a copartnership which had existed between Stille, McMillan, and the defendant, James, at Freeport, Illinois, under the firm name of D. A. McMillan & Co., and the arbitration thereof; secondly, to recover $350 for services so rendered, and disbursements so made, during said time, in the matters of difference between the defendant, James, and John Williamson; thirdly, to recover $500 for services so rendered, and disbursements so made, during said time, in suits against the defendant, James, and in favor of one Eric McArthur.

In answering the first cause of action the defendant denied that he ever retained the plaintiff's firm; or that he requested counsel, advice, or assistance from them; or that they did counsel him, or render any counsel or service, in the matter; or that he was ever indebted to the firm; admits that he did employ the plaintiff personally to advise or assist in the matter, but denied that he was the attorney of record, or took any part in the action, except that he assisted the defendant's attorney, Hyde, of Freeport, who had charge of the litigation; and avers that the plaintiff's services in the matter were not worth to exceed $800; that, during the time, the plaintiff received a large amount of property and effects owned by the defendant, or in which he was interested, and converted the same into money, and never accounted therefor; that, from time to time, the plaintiff received money and property more than sufficient to pay for the services rendered; that January 15, 1883, he duly paid plaintiff the claim set forth in the first cause of action, and then and there duly satisfied and adjusted the same, and duly received from the plaintiff a good discharge therefor; that said claim was on that day, and before the commencement of this action, duly paid, discharged, and satisfied.

The answer to the second cause of action consisted of substantially the same denials, admissions, and averments, so far as applicable, and alleged that the plaintiff's services therein were not worth to exceed $200.

The same is true with respect to the answer to the third cause of action. November 10, 1884, the cause was referred to James H. Merrill, to hear, try, and determine. A trial having been had, September 12, 1885, the referee made and filed his findings of fact and conclusions of law, to the effect: (1) That the plaintiff had been a practicing attorney at Milwaukee for more than 12 years. (2) That he was a partner with Mr. Stark from October, 1879, to May, 1884, when the firm was dissolved by mutual consent. (3) That, in the early part of 1878, the suit was commenced for the dissolution and settlement of the partnership matters of D. A. McMillan & Co. (4) That the plaintiff and H. C. Hyde, a lawyer at Freeport, were retained at that time by James to conduct the litigation; that in March, 1880, pursuant to stipulation and the Statutes of Illinois, the cause was referred to Bradly, McDonald, and W. C. Conway, as arbitrators, to hear, try, and determine; that their award was substantially in favor of James and Stille, the plaintiffs in the action, and against McMillan; that the plaintiff attended with Hyde all through the arbitration, looked up testimony, prepared statements, examined witnesses, made briefs and an oral argument, and did whatever was required of him; that such award was affirmed by the circuit court, the appellate court, and supreme court of Illinois, (105 Ill. 194;) that, as the result of the litigation, James and Stille received about $60,000. (5) That the plaintiff's services in that action and arbitration were reasonably worth $2,500. (6) That the plaintiff was retained in the proceedings prior to his partnership with Stark, and such employment by the defendant was personal; that Stark was not specially retained; that the responsibility of the litigation was entirely in the hands of the plaintiff, who, with Hyde, had sole charge of it; that all correspondence was from and with the plaintiff; that Mr. Stark was not connected with the matter, except, on one or two occasions, in the absence of the plaintiff from the office, the defendant consulted with Mr. Stark, and he, on one occasion, drew papers in the case. (7) That in 1880 the plaintiff was retained by the defendant to adjust his differences with one John Williamson, and, as a member of said firm, performed services in that matter, which was finally adjusted; and such services were reasonably worth $350. (8) That in October, 1881, the plaintiff, as a member of said firm, was retained by the defendant in two suits in favor of McArthur, which were finally settled before trial, and the services of the firm therein were reasonably worth $500. (9) That Stark & Brand dissolved May 1, 1884, and the demands in suit were on that day assigned by Stark to the plaintiff. (10) That January 15, 1883, at Milwaukee, said W. C. Conway, acting for the defendant, and at his request, paid to the plaintiff $3,000, and at which time the plaintiff executed a receipt to the defendant, expressed to be in full of all demands, and which receipt appears in the record. (11) That the payment of that amount was a full payment, satisfaction, and discharge of all claims or demands which the plaintiff had at that time against the defendant, either for his individual services only, or for the joint services of Stark and Brand; that this settlement was full and complete, with no reservation, and that all claims of the plaintiff against the defendant, for moneys advanced, or services of himself or of Stark & Brand, and all matters of difference between the plaintiff and defendant, were, by the payment and acceptance of said $3,000, paid, satisfied, and discharged. (12) That a few days subsequent to said settlement the plaintiff sent to the defendant and said Stille all their books and papers which the plaintiff had in his possession as their attorney, and that that terminated all business relations between the parties to this action.

As conclusions of law, the said referee herein found (1) that the retainer of the plaintiff, while a member of said firm, by the defendant, was a retainer of the firm; (2) that January 15, 1883, and before this action, the defendant paid and satisfied all the individual demands of the plaintiff, or the plaintiff and said Stark, against him by payment; (3) that the defendant was entitled to judgment dismissing the complaint, with costs.

Upon the hearing of the defendant's motion to confirm said report, and the plaintiff's motion to set aside and modify the same, it was ordered by the court that each and every objection and exception made or taken by the plaintiff upon the...