Orton v. McCord , 33 Wis. 205 ( 1873 )

Dixon, O. J.

The referee found that Robinson, the assignor of the plaintiff, never had any interest in the property, good will, or business of Price Bros. & Co; that he had purchased no such interest at the time he applied to the defendant representing that he had, and proposing to let the defendant in as a party in his (Robinson’s) place to the agreement; and that no such purchase had been made or agreement entered into at the time he introduced the defendant to Goodrich. The referee further found that such purchase was afterwards made from Price Bros. & Co., by Goodrich, Rumsey and the defendant, but not at the instance or request of Robinson, nor through him directly or indirectly, but as an original agreement for the purchase by the purchasers as copartners. As conclusions of law the referee found that there was a material variance between the agreement of the defendant as stated in the complaint, and as it appeared from the evidence, and that the pretended consideration for the agreement as shown by the evidence was false in fact, and wholly failed, and therefore the said agreement of the defendant became and was void and of no binding obligation upon him. The report of the referee, with his findings and conclusions of law, was ratified and confirmed by the circuit court.

If from the whole evidence we are satisfied that the referee was right in his finding of facts as above stated, or if the evidence is such as in our judgment not to justify us in reversing his finding and declaring him to have been in error, and if in addition there was no testimony offered by the plaintiff and rejected by the referee which should have been received, then it is manifestly our duty to affirm the judgment upon the facts of the case so found and reported, regardless of any errors which may have occurred or exceptions which may have been taken by the plaintiff upon or during the trial before the referee. If upon all the testimony, and we have it all here, which was properly offered and receivable on the part of the plaintiff, it appears that the referee was correct in his findings of fact, or that we can not say he was incorrect, his decision must be allowed to stand. We sit here to examine the cause and pronounce judgment on the facts as they appear to us, and not merely to scan technical irregularities and defects which may have intervened in the progress of the action through the court below. Under the statute making it the duty of this court to examine the evidence and decide the facts in cases of this description, proper exceptions for that purpose having been taken, the trial here becomes a fresh one, and the judgment in the nature of an original, the court paying such respect and no more to the decision made below, that if the testimony be evenly balanced, or if it can not be fairly said to preponderate against such decision, the same will not be disturbed.

Examining the present case in this manner, and supposing no testimony in favor of the plaintiff to have been improperly excluded, a point which will presently be considered, it is certainly impossible for us to say that the referee and the court bdlow were wrong when they found that Robinson had no interest in the property, good will or business of Price Bros. & Go., as set forth in the findings; and if that was so, then the conclusion that there was no consideration for the agreement of the defendant, as shown or claimed to have been by the evidence, follows as a matter of course. We do not merely say that the evidence in this respect is evenly balanced, for we think it preponderares in favor of the referee’s finding. Our reasons for this decision need not be particularly explained. Being a decision of mere fact, we deem it unnecessary and unprofitable to explain them. It is enough when we say we have carefully examined the testimony, and that such is our conclusion.

The only testimony offered by the plaintiff, and which was excluded by the referee, was that of the witness Mariner. That testimony was excluded on the ground that, being evidence of a communication made by the defendant to Mr. Mariner in his professional capacity, and whilst the defendant was advising and consulting with him as a lawyer engaged in the conducting and management of a litigation in which the defendant was pecuniarily interested, the same was privileged, and, therefore, inadmissible. The position taken against this ruling is, that it was not shown that the defendant had formally retained Mr. Mariner, and hence the relation of attorney and client did not exist. Mr. Mariner himself testified, as appears from the bill of exceptions, though not from the printed case: '* The declarations of McCord to me, I think, are privileged.” The opinion of so able and accurate a lawyer as Mr. Mariner is known to be, sustained by those of the learned referee and the judge of the circuit court, ought to be very satisfactory evidence of what the law is upon a point like this. It cannot be doubted that Mr. Mariner understood the true relation which existed between himself and the defendant better that anybody else can. He .supposed the defendant stood in the position of a client, as in truth he did, though he was not nominally connected with the litigation. The defendant’s rights were controverted and his interests put in jeopardy in the name of Goodrich, the party defendant to the action brought by Robinson. A formal retainer of Mr. Mariner by the defendant individually, or a retainer in any other manner than by Goodrich, the copartner of the defendant, and the party defendant in that action, was unnecessary in order to establish the relation of attorney and client, or give to the communication the character of being privileged. We think it was privileged, and that the referee and court below decided correctly upon the question.

Some question is made by the plaintiff upon the taxation of costs : but the same is so imperfectly presented by the printed case, that we are wholly at a loss to understand it. The printed case, which in other respects is quite defective, in this seems to be entirely so, and, therefore, presents nothing for our consideration.

By the Court. —Judgment affirmed.