Whereatt v. Ellis

• Decision Date: 22 November 1887
• Citation: 70 Wis. 207,35 N.W. 314
• Parties: WHEREATT v. ELLIS.
• Court: Wisconsin Supreme Court

70 Wis. 207

35 N.W. 314

WHEREATT

v.ELLIS.

Supreme Court of Wisconsin.

November 22, 1887.

Appeal from circuit court, Trempealeau county.

This cause was commenced in 1883. This is the fourth appearance of this case in this court. The nature of the three several causes of action alleged in the complaint, will be found in 58 Wis. 625, 17 N. W. Rep. 301. In March, 1884, the defendant by his verified answer denied each and every allegation contained in each and every of said causes of action, except as expressly admitted therein; and in answering the first cause of action alleged, in effect, that the legal title to the farms mentioned in that cause of action had been taken in the name of one James W. Taylor, a lawyer of Newburgh, N. Y., and this defendant, jointly, on foreclosure sales of mortgages belonging to clients of said Taylor, with the agreement that this defendant should have no right, title, or interest in any of said farms, nor the rents, issues, and profits thereof, except to hold the same as security for the payment of this defendant's costs, fees, services, charges, and disbursements in and about the same; that this defendant was authorized by said Taylor to employ a man to assist him in the management, care, sale, and rental of said farms; that the plaintiff made application for such employment, and was then fully informed of such agency of this defendant for said Taylor, and of all terms, conditions, and requirements thereof made by said Taylor in respect to the same; that the plaintiff, to induce the defendant to hire him for said Taylor as such assistant, warranted himself to this defendant, as such agent for said Taylor, to be especially qualified, experienced, competent, careful, and reliable in the care and management of farms; that in consideration thereof, and that the plaintiff would for and on behalf of said Taylor, in a skillful, diligent, faithful, and proper manner, under the defendant's direction, care for and manage all said farms, and keep them in good condition, repair, and improvement, find and secure tenants and purchasers therefor, and do whatever was proper or required of him in relation to the same for the period of one year, or until the crops of 1881 should be marketed, and then, as a part of the agreement, he, the said Taylor, was to account for and pay over to the plaintiff, as his full compensation therefor, one-tenth of the proceeds of said several farms as measured by the share in fact received by said Taylor, less the expenses incident to his share; and for finding purchasers, 5 per cent. commission on the price of any farm sold, on the receipt thereof; that such was the only agreement in which the plaintiff was to have one-tenth of the crops; that the plaintiff rendered his account for services in June, 1882, and the defendant as such agent fully paid him therefor; that the plaintiff continued such employment under the same agreement, except, in lieu of said one-tenth share, the plaintiff was to receive a reasonable compensation until June, 1882, when the defendant, by order of Taylor, discharged the plaintiff; that, while under said agreement for reasonable compensation, the plaintiff performed his services negligently, carelessly, and unfaithfully, to said Taylor's great damage and injury, to such an extent as to render such service wholly worthless and of no value to said Taylor; that the plaintiff was not especially qualified, experienced, competent, diligent, careful, and reliable as so warranted; that the leases for said several farms were only executed in the name of the defendant for convenience; that the defendant had no interest or ownership in the rents and profits thereof; that the same belonged to said Taylor in trust as aforesaid. In answering the second and third causes of action, it was alleged that the services mentioned were wholly performed by the plaintiff under the agreement aforesaid, and prior to June, 1882, and were settled for and paid to the plaintiff in June, 1882. The answer also contained a counter-claim, wherein it was alleged that the plaintiff was indebted to the defendant as more particularly stated in an account thereto annexed, as a part thereof, in the sum of $494.67, with interest from July 1, 1882, for which judgment was demanded. The plaintiff, replying, denied each and every allegation of the counter-claim.

The defendant having refused to appear before a circuit court commissioner, and give his deposition “otherwise than as a witness on the trial,” as required, the court, on July 2, 1885, made the order set forth in 65 Wis. 640, 644, 27 N. W. Rep. 630, and 28 N. W. Rep. 333, whereby said answer was stricken out, and judgment ordered in favor of the plaintiff, and against the defendant, in said action, unless the defendant should give such deposition and comply with the other terms of said order within 20 days from the service of a copy thereof. Such service was made July 13, 1885, and July 24, 1885, the defendant appealed to this court from that order; and the same was affirmed April 6, 1886. 65 Wis. 639, 27 N. W. Rep. 630, and 28 N. W. Rep. 333. The remittitur thereon was filed June 8, 1886. June 11, 1886, and without notice, judgment was entered, as upon default, in favor of the plaintiff, and against the defendant, for $2,938.10.

June 12, 1886, the defendant gave notice of a willingness to comply with the conditions of the order of July 2, 1885, and designated June 22, 1886, as the time for so doing, which offer the plaintiff refused. Upon application of the defendant, the court, June 17, 1886, ordered, in effect, that the said answer be allowed to stand as the defendant's answer therein, and the cause stand for trial, upon condition that the defendant pay the costs therein mentioned, and give such deposition before said court commissioner at a time and place designated therein, and that said judgment stand as security, and, upon failure to comply with such conditions, that it stand as the final judgment in the cause. June 25, 1886, the defendant appealed to this court from said judgment, and also from said order of June 17, 1886, both of which were affirmed February 1, 1887, as will more fully appear from the report of the case in 68 Wis. 61, 30 N. W. Rep. 520, and 31 N. W. Rep. 762. The remittitur on that appeal was filed March 3, 1887. Thereupon, and on March 5, 1887, upon the affidavits of the defendant and his attorney, and the records and papers on file therein, the plaintiff was ordered to show cause, in effect, why, on such terms and conditions as to the court might seem just, reasonable, and proper, the defendant's default in complying with said order of June 17, 1886, should not be set aside and vacated, and the said answer be allowed to stand, and a trial had thereon upon payment of costs, giving such deposition, and complying with all...