Fowler v. Metzger Seed & Oil Co.

Appeal: Trial contrary to stipulation: Consent of party alleging error: Compulsory reference: Long account: Appealable orders: Taxation of costs. J After it had been stipulated by tbe “parties that two actions should be tried together, tbe pleadings were amended and new issues introduced. On suggestion by the court of tbe difficulty of trying tbe cases together, plaintiff’s attorney in one of them stated that be was willing to have it tried separately, and it was so tried. Held,'that as against plaintiff there was no error in such separate trial contrary to tbe stipulation. .2. Where it appeared that tbe trial of an'issue of fact required tbe examination of an account on one side containing more than 500 entries and one on tbe other side containing nearly 100 entries, a compulsory reference was authorized by sec. 2864, Stats. (1898). -8. An order fixing tbe costs to be inserted in a judgment is not appealable, but is reviewable on appeal from tbe judgment if tbe evidence on which it is based and the exceptions thereto are preserved in a bill of exceptions.

Appeals from a judgment and an order of tbe superior ■court of Douglas county: A. J. ViNJE, Judge. This action was commenced August 20, 1903, to recover $2,500 upon an agreement made prior to November 1, 1901, whereby tbe defendant, a corporation located at Toledo, Ohio, agreed to pay tbe plaintiff, residing in Superior, for buying flaxseed for tbe defendant at tbe rate of one cent per busbel, and in addition thereto to pay to tbe plaintiff $50 per month, tbe plaintiff to forward or advance on account of tbe defendant moneys for tbe purpose of assisting in tbe purchase and binding tbe contracts. Tbe complaint alleged that tbe plaintiff remained in suck employ until July 1, 1903; tkat tke defendant failed and neglected and refused to pay tke plaintiff tke $50 per montk or any otker sum on or after November 1, 1901; and tkat tkere was due to tke plaintiff from tke defendant for suck service $1,000, and also for moneys so advanced' by tke plaintiff on tke purekase of flaxseed from tke Dakota Elevator Company, for tke use and benefit t>f tke defendant,. $1,500, no part of wkick kas ever been repaid by tke defendant. Tke defendant answered by way of admissions, denials, and counter allegations, and also by way of a counterclaim for $3,155.50 as an alleged balance for moneys advanced by tke defendant to tke plaintiff in excess of receipts. Tke plaintiff replied to suck counterclaim. Subsequently tke complaint was amended by increasing tke amount so alleged to kave been advanced by tke plaintiff from $1,500 to $8,500, and tke prayer for judgment to $10,500. Tke answer was thereupon amended. It appears tkat about tke time of tke commencement of this-action another action was commenced by tke so-called Dakota Elevator Company, doing business at Superior, against tke defendant to recover several thousand dollars by reason of tke decline in tke market of flaxseed between tke times of sales to this plaintiff, H. T. Fowler, as defendant’s agent, and tke defendant’s refusal to accept tke same, with storage charges and otker expenses, tke Dakota Elevator Company having, as claimed, sold tke flaxseed to otker parties at a loss of several thousand dollars. Issue having been joined in-tkat action, on April 9, 1904, this stipulation was .entered into by tke parties to this action: “It is hereby stipulated by and between tke parties to this action first above entitled shall be placed upon the calendar of tke present term of said court, and stand for trial at tke same time as tke action in wkick the Dakota Elevator Company is plaintiff, and tkat both of these actions shall be tried together at one and tke same time.” Tbe causes came on for trial before a jury May 5, 1904. Thereupon it was attempted to be proved that tbe so-called Dakota Elevator Company bad been incorporated by amending tbe articles of incorporation and changing tbe name of the-Terminal Storage Company of Superior to tbe Dakota Elevator Company, and, being unable to make such proof, the-causes were adjourned to May 9, 1904, when the trial was resumed before tbe same jury. It having transpired that such proof could only be made by an absent witness, tbe causes were continued to tbe April term, 1905. Tbe two actions finally came on for trial August 1, 1905, before a new jury. Thereupon counsel for tbe so-called Dakota Elevator Company announced that be was unable to prove such amendment of tbe articles of incorporation of tbe Terminal Storage Company, as such amendment was never filed in tbe office of the-secretary of state or tbe register of deeds, and so be asked to amend tbe complaint in that action by making tbe plaintiff named therein stand as “The Terminal Storage Company,, doing business as the Dakota Elevator Company.” Tbe court refused to allow such amendment, but otherwise allowed tbe pleadings in both actions to be amended as mentioned. On tbe suggestion of tbe court that it would be difficult to try tbe two cases together, tbe plaintiff in this, tbe Homer T. Fowler case, expressed a willingness to try that case by itself, to which tbe defendant withheld its assent. Tbe court then held that tbe two cases could not properly be tried together before tbe same jury, and thereupon directed tbe two causes-to be tried separately before separate juries. Thereupon, and after tbe reading of tbe affidavit for reference on tbe part of tbe defendant and tbe statement of facts in lieu of an affidavit on tbe part of-tbe plaintiff, tbe court granted tbe defendant’s motion for reference in tbe Fowler case, and, with tbe consent of counsel, appointed T. L. McIntosh such referee to bear proofs, take tbe evidence, make bis findings of fact and conclusions of law, and report tbe same to tRe court for confirmation, and tliat the official reporter at-, tend said trial as sucR. TRerenpon tRis canse was tried before tRe referee, wRo made Ris findings of fact and conclusions ■of law, wRieR, after being modified and corrected, were confirmed by tRe court, and from tRe judgment entered thereon .in favor of tRe defendant and against tRis plaintiff for $4,729.58 damages upon its counterclaim, and costs, the plaintiff appeals to this court. In taxing costs tRe clerk of tRe trial court allowed to tRe •defendant witness fees for its treasurer and secretary, eacR ■$47.70, making $95.40, wRieR tRe trial court by order reversed and set aside and Reid' for naugRt, and ordered sucR witness fees to be thereby fully disallowed, with $10 costs of motion. From that order the defendant appeals to this court.