Lowe v. Ring

• Decision Date: 11 November 1902
• Citation: 92 N.W. 238,115 Wis. 575
• Parties: LOWE v. RING.
• Court: Wisconsin Supreme Court

115 Wis. 575

92 N.W. 238

LOWE

v.RING.

Supreme Court of Wisconsin.

Nov. 11, 1902.

Appeal from circuit court, Clark county; E. W. Helms, Judge.

Action by Jesse Lowe against Merritt C. Ring. Judgment for plaintiff. Defendant appeals. Reversed.

This action was commenced December 31, 1897, to recover the amount due upon two promissory notes,--one for $1,500, executed by the defendant November 3, 1891, and the other for $485.88, executed by the defendant and another, severally, June 2, 1892, and which notes had been transferred to the plaintiff by the Clark County Bank before the commencement of this action. The defendant answered by way of admissions, denials, and counter allegations, and, among other things, alleged, by way of set-off and counterclaim, claims for services for himself and his firm of Ring & Youmans, as attorneys at law, at the special instance and request of the Clark County Bank while it owned the notes, in various matters, and also for the defendant's services as president of that bank. The plaintiff replied to the counterclaim by way of admissions, denials, and counter allegations to the effect that the services rendered were gratuitous, as president of the bank. It is claimed on the part of the defendant, and there is evidence tending to prove, that one Levy Archer had, up to 1889, and for many years prior thereto, been president of the bank; that April 8, 1889, Archer died, and the defendant was then elected president of the bank, and held that office until 1895; that Archer drew a salary from the bank from February 1, 1881, of $800 per year; that, during the last two years that Archer was president of the bank, he drew large sums of money therefrom, and when he died he was indebted to the bank for such loans in the sum of $29,000; that a meeting of the directors of the bank was held after his death, at which it appeared that he was then indebted to the bank in the amount last stated; that Ring wanted the bank to go into liquidation, but that the other directors opposed such action, and elected Ring as president of the bank, and also urged him to become administrator and manager of the Archer estate, and to administer such estate, pay off all claims thereon, and the residue was to go toward the payment of the indebtedness to the bank; that Ring acted as both president of the bank and administrator of the Archer estate; that in settling up the estate, which occupied from 1889 to 1897, it appears that Ring performed a large amount of services therein, aggregating 535 days, and realized during that time about $35,000, and therefrom satisfied all outside debts, and also the debt due to the bank of $29,000. For a further history of the litigation, see the report of this case on the former appeal. 106 Wis. 647, 82 N. W. 571. At the close of the last trial the jury returned a special verdict, consisting of answers to 16 questions, to the effect (1) that the amount due on the two notes was $3,039.45; (2) that the services of Ring & Youmans in the Christie case were not performed under a contract with the bank that the bank should pay them for such services; (4) that the services of Ring before the referee in the Christie case after the dissolution of the firm of Ring & Youmans were not performed under a contract with the bank that it should pay him for such services; (7) that the value of the services of Ring & Youmans in the Christie case, up to and including the last proceeding at Portage, was $645; (8) that $90 was the value of Ring's services in the Christie case after the dissolution of the firm of Ring & Youmans; (9) that Ring was not employed by the bank to act as attorney in the suit of Frank W. Archer against the bank; (11) that the services of Ring as attorney in the case of Hewett against the bank were not performed under a contract with the bank that it should pay him therefor; (12) that the value of Ring's services as attorney in the Hewett case was $120; (13) that the services of Ring & Youmans in the collection of the Kirkland note were not performed under a contract with the bank that it should pay them therefor; (14) that the value of their services in the collection of the Kirkland note was $125; (15) that the services of Ring in settling the Archer estate were not performed under a contract with the bank that it should pay him therefor; (17) that the services of Ring as president of the bank were not performed under a contract with the bank that it should pay him a salary for such services; (19) that the services of Ring in procuring loans in 1893 and 1894 were not performed under a contract with the bank that it should pay him a commission therefor; (21) that the services of Ring in taking the appeal in the case of Hill & Kinzie against Archer were not performed under a contract with the bank that it should pay him therefor; (22) that the value of Ring's services in the matter of that appeal was $120; (23) that it was not agreed at the time of the dissolution of the firm of Ring & Youmans that Ring should succeed to all the rights of that firm to charge and collect for the services theretofore rendered to the bank by that firm as attorneys. Thereupon counsel for the plaintiff consented to remit and did remit, from the $3,039.45 so found due to the plaintiff on the two notes mentioned, $210,--being the $90 for the defendant's services in the Christie case, and $120 for his services in the Hewett case, as found by the jury in answer to the eighth and twelfth questions; and the court thereupon ordered judgment in favor of the plaintiff for $2,829.45, with costs. From the judgment so entered accordingly, the defendant brings this appeal.S. M. Marsh and James Wickham, for appellant.

L. M. Sturdevant and Chas. F. Grow, for respondent.

CASSODAY, C. J. (after stating the facts).

On the former appeal it was held that: “Where services are rendered to a corporation by one of its officers, which are clearly outside of his official duties, a recovery may be had therefor under implied contract, if the circumstances be such as to fairly imply that it was expected...