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 Brennan v. Healy, 157 Wis. 37. for the reasonable value of such services, whether or not Keating informed plaintiff that the services were in whole or in part for the benefit of defendant." The jury having returned a general verdict for the defendant, the plaintiff appeals from judgment thereon. For the appellant there was a brief by John Brennan, in pro. per., and L. K. Luse, of counsel, and oral argument by Mr. Brennan. W. P. Crawford, for the respondent. The following opinion was filed February 24, 1914: WINSLOW, C. J. A number of exceptions to rulings upon evidence are raised and argued in appellant's brief. It must be sufficient to say with regard to these alleged errors that we have examined them and do not consider them of sufficient importance to justify their treatment in detail. If there was error in any of them, it seems quite certain that it was nonprejudicial. The real contention on the merits of the case is that the charge was misleading in that it gave the jury the impression that plaintiff claimed there was an express contract of employment and that it was necessary in order to justify a recovery that an express contract be proven; whereas as matter of fact the plaintiff only sought to recover on the ground that he had rendered valuable services to the defendant which were accepted by him, and for which the law will imply a promise to pay their reasonable value. We do not regard this contention as sound. The plaintiff in fact made both claims. His complaint charged services of the reasonable value of $10,000 performed for the defendant "at his special instance and request." Under this complaint there could doubtless be a recovery upon either theory. An express request by the defendant or his duly authorized agent might be proven, or the rendition of the services with the knowledge of the defendant and their acceptance by him, thus raising the implied promise, might also be proven. As mat Brennan v. Healy, 157 Wis. 37. ter of fact it is apparent that the plaintiff attempted to prove both and relied upon both. Very early in the case, while the plaintiff was on the stand as a witness, the question was asked. whether advice given to Mr. Keating as to the value of ore on his forty would be advantageous to the owner of the Healy forty. Objection was made to this question, and the court asked what the theory of the evidence was, to which plaintiff's counsel replied, "Mr. Keating was the agent of Mr. Healy." The court then said, "You haven't shown that;" whereupon plaintiff was withdrawn from the stand and a part of the deposition of the defendant, taken before trial under sec. 4096, Stats., was offered by plaintiff tending to show that Healy had given Keating authority to take samples from the drillings on his (Healy's) land and to make a deal with some person for the mining of the ore, and that he knew that Brennan was acting for Keating. After this testimony was received the plaintiff was recalled to the stand and asked to state "whether or not you rendered or performed any services at the request of Mr. Healy in regard to the ore, exploring, developing, and leasing of it on his forty acres (describing it), between February 1st and December 1, 1908." Objection being made to this question, a colloquy took place between court and counsel, and the court stated that he supposed there should be some proof of the fact that a contract relation existed as a basis for the testimony, and plaintiff's counsel replied "express or implied contract certainly." The court then said: "Your question . . . calls for a conclusion of the witness as to whether or not there was a request; probably the nature of the request should be made to appear." The objection was then sustained, and the plaintiff proceeded, evidently in accordance with the suggestion of the court, to prove a conversation with Healy in March about the Keating contract, his (plaintiff's) offer to advise him (defendant) about his contract, also an alleged conversation about October 31st concerning the Crosby offer and on the Monday Brennan v. Healy, 157 Wis. 37. morning following at his (plaintiff's) office, when the blue print was produced by Healy and advice given by plaintiff as to the price which defendant should demand of Crosby. The plaintiff followed this with proof of the conversations with Healy and Keating later when the contracts with Crosby were being discussed and drawn. This evidence of agency on the part of Keating and personal conversations between defendant and plaintiff was followed by considerable evidence on the part of the plaintiff showing the advice given by him from time to time to Mr. Keating as to the manner of drilling, the depth of the holes, and generally what was best to be done, and this evidence was received by the court plainly on the theory that there had been prima facie proof made of request on the part of the defendant through the medium of Keating as his agent. Of course, it also tended to prove knowledge, but there can be no doubt that it was offered and received with the idea of proving request, and so we think the court was entirely right in submitting to the jury first the question whether Keating was authorized by the defendant to employ the plaintiff on his behalf, and, if so, whether he did employ him. That the plaintiff considered this question as a question in the case at the time of the trial is very evident from the following instructions which he submitted to the court: "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. "You are further instructed that if, as the agent of 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 for the reasonable value of such services whether or not Keating in |