Malone v. Roby

• Decision Date: 03 March 1885
• Citation: 22 N.W. 575,62 Wis. 459
• Parties: MALONE v. ROBY AND ANOTHER.
• Court: Wisconsin Supreme Court

62 Wis. 459

22 N.W. 575

MALONE

v.ROBY AND ANOTHER.

Supreme Court of Wisconsin.

Filed March 3, 1885.

Appeal from county court, Dodge county.

Harlow Pease, for respondent.

A. K. Delaney, for appellant.

ORTON, J.

In a suit pending in the circuit court of the county of Dodge, between Samuel D. Roby, defendant herein, as the plaintiff, and Jacob W. Roby, the other defendant herein, as defendant, there was an order of reference of the whole case, to hear, try, and determine, to the plaintiff, James E. Malone, as sole referee. After the appointment of said referee the parties entered into the following stipulation, or agreement: (Title of the cause.) “It is hereby stipulated that the referee herein shall be allowed ten dollars per day, and expenses, in the trial of this action.” (Signed by the attorneys of the respective parties.) The plaintiff, as such referee, proceeded to hear, try, and determine said action, and made report thereof to the court, and thereupon demanded of the defendants, as his per diem allowance, the sum of $420, and for his necessary expenses the further sum of $70, according to said stipulation, which they refused to pay. These are substantially the facts set out in the complaint. One of the defendants demurred to the complaint, on the ground that it failed to state a cause of action. On the motion of the plaintiff's counsel said demurrer was stricken from the files, as being frivolous.

1. The only question upon the demurrer is whether the compensation of the plaintiff, as such referee under said stipulation, should be taxed up as costs against the losing party in the action merely, or he be allowed to recover against both of the parties jointly, by virtue of said contract, in this action. Section 2930, Rev. St., provides that “the fees of referees shall be three dollars per day spent in the business; but the parties may agree in writing upon any other rate of compensation.” The plain, common sense view of the question would seem to force the conclusion that the defendants are strictly bound to the plaintiff by their agreement to pay him for his services at the rate stipulated. The presumption is that his services were deemed of special value to both of the parties to the suit, beyond and outside of the mere costs allowed him by the statute, and that this was the inducement of the contract. It may also be presumed that the plaintiff was induced to render his services in the cause by this joint agreement of the parties to pay him therefor. This is certainly a valid agreement, and made so by the statute itself; and why should it be treated differently from other valid contracts? The plaintiff by the contract secured the joint liability of the parties for his work and labor; and why should he not be able to enforce it?

If the stipulation had been, after agreeing upon the rate of compensation, that it...