Van Oss v. Synon

• Decision Date: 26 September 1893
• Citation: 56 N.W. 190,85 Wis. 661
• Parties: VAN OSS v. SYNON ET AL.
• Court: Wisconsin Supreme Court

85 Wis. 661

56 N.W. 190

VAN OSS

v.SYNON ET AL.

Supreme Court of Wisconsin.

Sept. 26, 1893.

Appeal from circuit court, Columbia county; R. G. Siebecker, Judge.

Action by Aseneth Van Oss against T. H. Synon and another. From an order of reference for the examination of the accounts, plaintiff appeals. Affirmed.George W. Bird, for appellant.

John H. Brennan, for respondents.

ORTON, J.

This is an appeal from an order appointing a referee to hear, try, and determine the cause on the ground that the trial of the issues of fact will require the examination of a long account. The plaintiff complains that she employed the defendants, attorneys at law, to sue for and collect the moneys due her upon two accident insurance policies, of $2,000 each, issued by two different companies, and pay the same to her, less their fees of $1,000. After considerable litigation in the circuit and supreme courts, the defendants recovered judgments on said policies aggregating the sum of $4,582.41. The insurance companies having threatened further litigation by appeal to the supreme court, the plaintiff, by the advice or consent of the defendants, compromised and settled with said companies at the sum of $3,200; and the defendants received the same, and paid over to the plaintiff, of that sum, only $1,450, and have never paid or accounted for any balance thereof to her, “and have wrongfully converted the same to their own use.” The plaintiff has at different times demanded that the defendants account to her for the balance collected by them, and pay to her the further sum of $550; and the defendants have neglected and refused so to do, and still neglect and refuse, to her damage of $550, and interest thereon from the 8th day of August, 1890. The plaintiff demands judgment against the defendants for the sum of $550, and interest as aforesaid. This is the substance of the complaint. The answer of the defendants sets out the history of the litigation, and their services in the two suits in the different courts, and that it was necessary to procure medical evidence and assistant counsel, and to incur other expenses, and that they did so with the plaintiff's consent, and that after said judgments were rendered it was agreed between the plaintiff and defendants that the defendants should receive for their services, charges, and disbursements of said judgments the sum of $2,382.41, and that they should pay over to the plaintiff the sum of $2,200, as the balance thereof. After said judgments were compromised, as aforesaid, at the sum of $3,200, it was agreed between the plaintiff and defendants that the defendants were to receive, and accordingly did receive, of said sum, $1,750 for their services, and to pay certain expenses and charges, amounting to $940, and the plaintiff should receive, and did then receive, of said sum, $1,450. The defendants aver that their services, together with their disbursements, were reasonably worth the sum of $2,223.50, as will more fully appear by the statement and Exhibit A, and that said statement is full, fair, and just. The defendants, as and for a counterclaim against the plaintiff, allege that, as attorneys at law, they performed services for the plaintiff, and at her instance and request, in 1888 and 1889 and during the summer of 1890, of the value of $502.75, and such services are reasonably worth said sum, and no part thereof has been paid, and the plaintiff is justly indebted to the defendants therefor. Said services are more particularly set forth in Exhibit B. The defendants demand judgment for said sum of $502.75, together with costs and disbursements. The plaintiff replies to the counterclaim by a general denial, and a specific denial of the items thereof contained in said statement marked “B.” The statement marked “Exhibit A,” annexed to the answer, contains about 45 items debit, and 9 items credit, and the statement marked “Exhibit B” contains about 13 items of account. The contention of the learned counsel of the appellant is that it was error in the circuit court to grant the order of reference, for the reasons (1) that this action is in tort; and (2) that the trial of the issues does not require the examination of a long account.

1. Common-law actions are divided into actions ex delicto and ex contractu, or such as arise from torts or wrongs, and from contracts. A tort is a private or personal wrong, as distinguished from a wrong to the public, or crime. A tort is further distinguished from a contract (1) in that the party may be arrested on process, and imprisoned on the judgment; (2) in that there is no right of contribution between the several defendants for a joint wrong; (3) joint tort feasors or wrongdoers are severally liable; (4) at common law the action does not survive, but abates on the death of the party. These are very wide and important distinctions. A tort may grow out of, or be coincident with, a contract, and in such case it must clearly have all the necessary elements of a...