Malone v. Gerth
| Decision Date | 23 June 1898 |
| Citation | 75 N.W. 972,100 Wis. 166 |
| Parties | MALONE ET AL. v. GERTH. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Dodge county court; C. A. Christiansen, Judge.
Action by Julius E. Malone and others against Anna C. Gerth for attorneys' fees. From a judgment for plaintiffs, defendant appeals. Affirmed.
Action in justice court, in Dodge county, founded on an agreement by which the plaintiffs, as attorneys at law, were to foreclose a mortgage held by the defendant against John Vogt and wife, and for which plaintiffs were to receive $100, and costs, that were subsequently taxed at $82.20. It was claimed that the services so performed were reasonably worth the sum of $182.20, for which judgment was demanded, with interest from May 9, 1896. By the answer as amended before trial in the county court, to which the case was appealed, the defendant alleged that the contract was that plaintiffs should do the work in question for $100, and that the defendant should have the taxable costs. By way of defense, it was set up, among other things, that the plaintiffs agreed to do the work in a diligent and professional manner, and had failed to comply with the terms of said contract through neglect and ignorance of their profession, by commencing the foreclosure action against the wrong parties, which neglect, etc., was not excusable, they being at said time attorneys admitted to practice, whereby the defendant sustained great damage in costs and the loss of interest on her mortgage of $4,500 for one year; that the mortgagor John Vogt shortly before died, in Fond du Lac county, leaving an estate therein to be probated, and that it was a part of the duty of plaintiffs to file a claim for this defendant against said estate for the purpose of collecting therefrom any deficiency that might arise and be owing to her from said John Vogt or his estate upon the sale of the mortgaged premises; that the estate of said Vogt was solvent, and the debts which were filed against the same were paid in full; that the plaintiffs, before the time therefor had expired, promised and agreed to file such claim of the defendant as a part of their duty in protecting her interest under said mortgage, but, neglecting their duty as aforesaid, they failed to file such claim, and made a bid for the mortgaged premises upon the sale of $8,100, which was $100 more than any bid authorized to be made by them, and the amount due upon said judgment to this defendant at the time of the sale was $8,292; whereby the defendant was damaged in the sum of $292. The defendant further alleged that, after the plaintiffs had obtained a judgment of foreclosure, the farm covered by said mortgage was vacated, and left unoccupied, and that the plaintiffs, acting through John G. Bachhuber, one of said plaintiffs, promised defendant that, if the farm was vacated, he would get somebody to do the plowing upon it, and that the defendant relied upon said Bachhuber doing so, but, although said farm was vacated, plaintiffs failed and neglected to have any one do the plowing or any part thereof, and none was done upon the place until it was sold, May 9, 1896, when Bachhuber bid in the place in the name of the defendant, though the plowing was left undone, whereby the defendant was damaged in the sum of $500; that said plaintiffs undertook to find a purchaser for said farm, and that numerous parties who desired said farm, or to buy said judgment of foreclosure thereon, saw the plaintiffs, and offered the sum of $8,000 therefor, but they neglected their duty to the defendant in the premises, and wrote to her saying that they could get for the claim of the defendant clear $7,500, or possibly $7,600, and advised her to accept said offer as being the highest they could get for it, when in truth and in fact they had been offered $8,000 therefor, whereby the defendant suffered other damages in the sum of $200; that plaintiffs claimed to have employed one T. J. Hoey to act as guardian ad litem for certain minor defendants in the foreclosure action, and agreed he should be paid $25 for such services; that the said Hoey sued the defendant for his fees, and, relying upon the advice of the plaintiffs and her own attorneys, she defended the action, and it was finally settled, and she paid on account of the same $50 to him, and for expenses in said case, by reason of which she had been damaged in the sum of $50. The defendant demanded the dismissal of the complaint, and that she recover the damages as above stated.
These several matters were put in issue, and the case came on to be tried before the court and jury. It appeared, in brief, that the plaintiffs, attorneys at law, foreclosed a mortgage of $4,500, face value, for the defendant on certain lands in Fond du Lac county, got judgment of foreclosure for $7,398, waited a year after they had judgment, then advertised the land for sale; and sold it May 9, 1896, obtaining an order confirming the sale, and the deed was delivered to the defendant, who bid it in; that they bid in the property, at her direction, for $8,100; that the amount due on the judgment at the time of the sale was about $8,200. The testimony of Mr. Bachhuber, one of the plaintiffs, was that he did this work to the best of his ability, and as good as any one could do it; that they had a settlement with the defendant, when she said she had no money to pay the sheriff with, to whom $30.80 was coming, and that he should pay it, which he did; then a conversation ensued about what the plaintiffs were to get, and it was settled there that they were to get $182.20 and the $30.80 which they had paid out, and that she paid back that $30.80; that the only agreement that he made was to foreclose the mortgage for the $100 that was stipulated therein, if it would include the taxable costs; that the...
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