Brennan v. Healy, 157 Wis. 37. cording to plaintiff's testimony, plaintiff then told defendant that he would advise him with reference to his lands if he would call at his office and he (Healy) promised to do so, but this was denied by Healy. On the 31st of March defendant entered into a contract with the same drilling firm to drill his land, the terms of which contract followed so closely the terms of the Keating contract that there can be little. doubt that the Keating contract was used as its basis. This contract was not, however, drawn by plaintiff, nor did he know of its execution at the time. Drilling proceeded on the lands of both Keating and Healy during the summer and fall. Blue prints and monthly reports of the drillings were furnished by the drillers to Keating and samples of the rock. These blue prints, reports, and samples were submitted by Keating to the plaintiff as furnished. After ore had been found on Healy's land and after Keating had begun to consider the question of making a contract for the mining of the ore, Healy told Keating, in substance, that he could take his (Healy's) samples of ore, and that whatever he (Keating) got for his ore he could deal the same way with his (Healy's). There is no direct proof of any broader agency than this on the part of Keating. Late in October or early in November, 1908, Keating made an oral arrangement with one Crosby to take mining leases of both his and Healy's land at a royalty of twenty-five cents per ton. The plaintiff claims that before. this took place he had met Healy at his (Brennan's) office at Superior by appointment, and that Healy had brought him, at his (Brennan's) request, a blue print of the drilling on his forty, and that he (Brennan) then advised him (Healy) not to accept an offer of eighteen and three-fourths cents per ton made by Crosby, and that he promised not to do so. This interview is absolutely denied by Healy. On November 11th Keating came to Superior and he and Healy arranged to go to Crosby's office at Duluth to close the contracts with Crosby. At Keating's house there was a difference of opinion as to Brennan v. Healy, 157 Wis. 37. whether they should take a lawyer with them to help them in their negotiations with Crosby. Keating and Healy did not wish to do so, but Mrs. Keating said, "So long as they were paying Brennan they might as well take him." Keating and Healy finally agreed and went to Brennan's office, and all three went to Crosby's office. Brennan assisted actively in the preparation of the necessary leases, deeds, and contracts on that day and the following, and the arrangement with Crosby by both Keating and Healy was finally closed. The charge of the court to the jury is vehemently complained of as a mistake of the real issues, and it seems to become necessary to set it forth in some detail. The charge begins as follows: "The plaintiff by his complaint in this action claims that during the time from February 29, 1908, to December 1, 1908, he was in the employ of the defendant as an attorney and as an expert in the matter of developing, exploring for iron upon and dealing with reference to forty acres of land on the Cuyuna iron range, in Crow Wing county, Minnesota, described in the complaint; that pursuant to such employment he rendered services to the defendant, and that such services were reasonably worth ten thousand dollars. Plaintiff does not claim that such employment resulted from any conversation or dealing had by him with the defendant personally, but claims that he was employed to render the services sued for by one Thomas Keating, whom he claims acted and was authorized to act in the matter as the agent of the defend ant. "The defendant to rebut the plaintiff's claim denies that Keating was authorized by him to employ plaintiff, denies that plaintiff was employed, denies that plaintiff rendered him any services for which claim is made, and denies that any service rendered for him by plaintiff, if rendered, was of any value. "You are instructed that as to each claim made by the plaintiff the burden is upon him to satisfy you by a preponderance of the evidence and to a reasonable certainty as to his contention with reference thereto. As to the question whether Brennan v. Healy, 157 Wis. 37. or not Keating was authorized by defendant to employ plaintiff, and as to the nature of the service for which he was authorized to employ him, you are instructed that you may be satisfied that such authority was in fact given by defendant to Keating, either from direct evidence to that effect or from proof of such facts and circumstances that such authority may reasonably be inferred therefrom, and you are instructed that such authority may be inferred from facts and circumstances proven in the case, if such facts and circumstances are of such a nature as to reasonably warrant such inference therefrom. "You are instructed, also, that as to whether or not a contract of service existed between the plaintiff and defendant, that if you find that Keating was authorized by defendant to employ the plaintiff in his behalf, that then the claim that a contract existed may be established by proof of express employment, or by proof of such facts and circumstances that the existence of a contract of employment may reasonably be inferred therefrom, and that you have a right in considering this question to draw such inference from facts and circumstances proven as their nature reasonably warrants. "If you find that Keating was authorized by defendant to employ the plaintiff, and that Keating in fact did employ plaintiff on defendant's behalf, you will then consider the question as to whether or not the plaintiff rendered services to the defendant pursuant to such employment, and the kind and amount of such service so rendered, if any." The court then proceeds to state in substance that a contract may be established by proof of express employment or by proof of such facts and circumstances that the existence of a contract may be reasonably inferred; that if Keating was authorized to employ plaintiff and did in fact employ him, the question whether services were in fact rendered pursuant to the employment and the kind and amount of the services so rendered must be considered; that there were two kinds of services claimed, namely, services as an attorney and legal adviser, and services as an expert in drilling, exploring, developing, and dealing with mining lands; that it was undisputed that plaintiff was in Keating's employ as an attorney, Brennan v. Healy, 157 Wis. 37. but that there was a dispute whether he was in Keating's employ as an expert in matters relating to iron mining lands. The charge then proceeds as follows: "This contention would be unimportant and wholly immaterial in this case except for the contention on the plaintiff's part that during the time in question he was employed by Keating as defendant's agent to render similar services to the defendant as to the defendant's lands, and that he did in fact render to the defendant services of that nature pursuant to such employment. The situation requires careful consideration on the part of the jury of the evidence bearing upon the question as to whether the minds of Keating and the plaintiff met on the matter of plaintiff being employed by Keating to render service for defendant. You are instructed that in order for you to find that plaintiff was so employed, you must find from the evidence, and by a preponderance of the evidence, that the minds of Keating as agent of defendant, if he was his agent, and plaintiff met upon that proposition, and in view of the fact that the plaintiff was serving Keating personally as his attorney, the evidence, in order to justify a finding that plaintiff was employed to render service in the capacity of an expert in mining matters, should be clear and convincing; this in view of the fact that it is a matter of common knowledge that business men who employ lawyers frequently discuss business matters with such lawyers, and that such discussion is customarily not made the subject of a charge by the lawyer separate from his charge for legal services, so that to justify you in finding that the minds of the parties to this action met upon a contract for services by which plaintiff was to receive compensation for services as an expert in mining matters, over and above his charge for services as a lawyer, the evidence upon that point should be clear and convincing. "You are further instructed that if you find from the evidence that Thomas Keating was the agent of the defendant in relation to the handling, exploring, developing, and leasing of the Healy property, Keating's authority included whatever was necessary to effect the main purpose of the agency, including the employment of a subagent, and the defendant is bound by such employment even though not expressly authorized by him. Brennan v. Healy, 157 Wis. 37. "The court further instructs you that no express employment is necessary to charge defendant with liability to the plaintiff for services, which you find were performed by plaintiff for defendant in respect to the property in question, but that an agreement in fact creating such obligation may be implied or presumed from the acts and conducts of the parties; and further, that if you find that plaintiff did in fact perform services for defendant with his knowledge, defendant is liable to plaintiff for the same, unless you further find that such services were intended by the plaintiff to be gratuitous, or that they were performed under such circumstances that the defendant was warranted in believing and did believe that they were intended to be gratuitous.' "If the jury finds from the evidence that the plaintiff is entitled to recover from the defendant, then you are instructed that he is entitled to recover the reasonable value of his services, and in estimating said value you have the right to allow him for all services performed, whether it consisted of both legal services and information, business and expert advice with respect to the handling of the defendant's mineral lands and ore, and the exploring, developing, and leasing of the same, or of only one kind of services, according to what you shall find in that regard. "You are further instructed that in estimating the reasonable value of plaintiff's services which you find he performed for defendant, you should take into consideration the value of the Healy property and the financial benefits, if any, reasonably to have been anticipated by the parties at the time the services were rendered as resulting to the defendant from such services. "You are further instructed that if plaintiff performed services at the request, express or implied, of Thomas Keating, and a part of such services were in fact performed for the defendant, with his knowledge, defendant is liable to plaintiff for the reasonable value of that portion of such services which were so performed for him and of which he received the benefit. "You are further instructed that if, as the agent of the defendant, Thomas Keating employed plaintiff to perform services which were beneficial to defendant in respect to the property in question, the defendant is liable to the plaintiff |