Haag v. Cooper ( 1911 )

ViNjs, J.

No claim is made by plaintiff that any question of law arises upon any item except that of $37.50 for plowing twenty-five acres in the fall of 1901. It is urged, however, as to the other items disallowed by the referee, not that there is no evidence to support the findings, but that the witnesses for plaintiff are entitled to more credence than those who testified for defendant, and therefore the preponderance of the evidence is against the findings. Unfortunately for the claim made, a careful reading of the record fails to disclose any. inherent incredibility in the evidence upon which the findings are based, and hence we cannot disturb them. Witt v. Merz, 140 Wis. 29, 121 N. W. 885. As to the item of plowing, plaintiff testified that defendant requested him to do it and promised to pay for it or else “plow back” an equal amount, and that he had done neither. Defendant flatly denied this, and said be did not know bow plaintiff came to do tbe plowing. That is all tbe testimony there is on tbe subject. It is claimed by plaintiff that since tbe defendant got tbe benefit of tbe work tbe law raises an implied promise to pay for it, and tbe item should have been allowed on that ground even though it be true that defendant did not request its being done nor promise to pay for it. The referee, however, expressly found that tbe plowing was done by plaintiff without any expectation of repayment, and there is much in tbe case to support such a finding. They were engaged in a common enterprise in which mutual aid, though not required by tbe strict letter of tbe contract, is often rendered without expectation of any other form of payment than results from a joint profit. Moreover, this plowing was done in tbe fall of 1901. Since then tbe parties have bad many settlements under their contract, and this claim apparently was never mentioned. Indeed, it was not included in tbe first action that plaintiff brought against tbe defendant. These and other considerations no doubt induced the referee to find that tbe plowing was a gratuitous service. Tbe finding rests upon evidence sufficient to sustain it. If counsel in such cases as this would give more heed to tbe valuable suggestions contained in Daubner v. McFarlin, 136 Wis. 515, 117 N. W. 1002, clients would be saved needless expense and this court much unprofitable labor.

By the Court. — Judgment affirmed.