Opinion
December 6, 1957 —
January 7, 1958.
APPEAL from a judgment of the county court of Outagamie county: STANLEY A. STAIDL, Judge. Affirmed.
For the appellant there was a brief and oral argument by Joseph Witmer of Appleton.
For the respondents there was a brief by Benton, Bosser, Fulton, Menn Nehs of Appleton, pro se, and oral argument by David L. Fulton.
Claimants are lawyers and partners. On January 11, 1957, they filed a claim against the estate of John F. Bloomer, deceased, in the amount of $4,744.93, for professional services rendered and disbursements made.
John F. Bloomer had been a road contractor since 1920. His sons, Nathan and Francis, had become his partners in about 1948. In 1949, Nathan died and Francis and John entered into a partnership agreement. The partnership continued until John's death on September 24, 1955. John F. Bloomer was eighty-six years old at the time of his death and had become less active in the business during the later years. The inventory showed a total estate in excess of $470,000.
Mr. Bosser, one of claimants, rendered legal services to John Bloomer over a period of many years both prior to and after the formation of Bloomer's partnership. From time to time he submitted bills to Mr. Bloomer and any bills submitted were paid within a reasonable time. No bills appear to have been submitted, however, for the services covered by the claim. From day to day as the services were rendered, a brief description of them and the number of hours spent were entered at Mr. Bosser's direction on ledger sheets under Mr. Bloomer's name. The claim and the ledger sheets covered services from January 18, 1949, down to September 20, 1955, prior to the death of John Bloomer, and also covered certain services performed with reference to John Bloomer's affairs after his death and down to November 17, 1955.
The total number of hours listed in the claim were 464.5. Disbursements were itemized at $99.93. At the trial the claim was amended so as to delete all services rendered more than six years prior to the date of death and certain other amendments were made correcting items of small amount.
The amended claim set forth over 200 items, including a variety of services. Some related to income-tax matters, others to sales of real estate, making mortgage loans, miscellaneous conferences and telephone conversations with Mr. Bloomer, his wife, his sons, and others, drafting wills, and writing letters.
Mr. Bosser testified that his itemized statement was a true and correct statement of the services rendered to John Bloomer for the period referred to; that the items were taken from claimants' original records made within a few hours of the particular transactions; and that he computed the claim at a rate of $10 per hour.
Mr. Gustave J. Keller, an attorney practicing at Appleton since 1922, was called as a witness on behalf of claimants and testified that he had examined the statement filed in support of the claim and that he considered that an hourly rate of $10 was a proper fee on an average basis for the type -of service set out in the account. He assumed that the time specified in the statement was actually put in by Mr. Bosser and stated that from his own experience he could understand that that amount of time could reasonably have been expended on the type of work described.
So-called minimum-fee schedules of the Outagamie County Bar Association and the Wisconsin Bar Association were received in evidence without objection. Although both recommend specific minimum charges for preparing specified documents or carrying out specified procedures, both also recommend $10 as a minimum hourly rate for "miscellaneous" work.
A few hours of the total claimed were spent on work on a will for Mrs. Bloomer and some hours were spent in connection with her income-tax reports and obtaining permission for her to alter her fiscal year. There was testimony that the change in Mrs. Bloomer's fiscal year resulted in an advantage to Mr. Bloomer through the filing of joint returns.
A number of hours appear to have been spent rendering services which were of benefit to the partnership. Because the claimants took the position and the court ruled that it was immaterial whether the work which benefited the partnership was a partnership obligation or an individual obligation, the record does not clearly indicate the extent of the work in this particular category.
John Bloomer was survived by his sons, Victor and Francis, and a daughter, Ione, as well as children of Nathan, and other grandchildren. His will, drawn and witnessed by Mr. Bosser, gave to Francis all of John's interest in the partnership except John's share of the profits from the first day of March preceding his death.
Subject to the amendments previously referred to, the court allowed the claim for services rendered during the lifetime of John Bloomer and allowed the claim for services rendered after his death as a part of the costs of administration except for a charge of ten hours for preparing the claim itself. The court made findings that the services as itemized were rendered to John Bloomer between September 24, 1949, and September 24, 1955, at his specific instance and request and that their total reasonable value was $3,247.50. The court accepted the $10 hourly rate as a measure of the reasonable value of the services. He also found that claimants rendered services to the executor at his specific instance and request from September 24, 1955, to November 17, 1955, of the reasonable value of $102.50, and that disbursements were made in the amount of $40.62, making a total of $3,390.62, no part of which had been paid. On May 23, 1957, judgment was entered allowing the claim in that amount and the executor has appealed.
1. Bill of particulars. In December, 1956, the executor moved that the claim be made more definite and certain and that a bill of particulars be presented. The motion was denied and the claim set for hearing on February 14, 1957. The claim contains 16 typewritten pages in which the items of service and time spent in rendering each item are set forth in chronological order. The executor asserted that the services rendered to the partnership should be separately designated and that the various items should be grouped according to the particular matter of business being worked upon. At the hearing on the motion claimants suggested that the executor adversely examine Mr. Bosser before trial, but the executor did not do so. We think the trial court did not abuse its discretion in denying the motion. We are also of the opinion that had the executor proceeded by adverse examination before trial, as suggested, the points at issue could have been tried out in considerably less time and with more clarity.
2. Sufficiency of evidence. Mr. Bosser testified that claimants had a system of recording services under which entries are made daily on ledger sheets kept separately for each client, stating the type of service rendered and the time spent. Mr. Bosser produced the sheets kept under Mr. Bloomer's name, testified generally that he had rendered the services set forth and that he had dictated the entries. They were received in evidence. They were admissible and were prima facie evidence of the furnishing of the services. Sec. 327.24, Stats. Mr. Keller's testimony was a sufficient basis for computing the reasonable value by multiplying the number of hours spent by $10.
Accordingly it is unnecessary to decide whether the bar association schedules, admitted without objection, would support the finding. They would not require a different finding. Neither is it necessary to decide whether the judge's own knowledge as a lawyer is a basis for determining the value of a lawyer's services as stated in Will of Gudde (1951), 260 Wis. 79, 86, 49 N.W.2d 906. See also Larscheid v. Kittell (1910), 142 Wis. 172, 177, 125 N.W. 442, and Rubekeil v. Bowman (1920), 171 Wis. 128, 176 N.W. 854.
3. Work done on the affairs of Mrs. Bloomer. Some of the services were rendered in preparing Mrs. Bloomer's will and in connection with her income taxes. Under the circumstances, it is not presumed that Mr. Bloomer acted only as her agent in requesting that these services be rendered. Thus his request gave rise to his liability to pay. Benton v. Stadler (1931), 203 Wis. 536, 234 N.W. 739.
4. Work done on loans. Some of the services were rendered in examining abstracts on property of people borrowing money from Mr. Bloomer and in preparing the mortgages and other papers for -execution by the borrowers. The executor argues that the borrowers should have paid for these services. While borrowers often agree with a lender that they will pay the fees of the lender's attorney, the services of the lender's attorney are nevertheless for his protection. There is no evidence in this case either of an agreement by the borrower to pay the fee or of an agreement by the attorney to look only to the borrower for payment.
5. Statute of limitations. As amended, the claim covers six years preceding Mr. Bloomer's death. The executor argues that items more than two years before his death are barred. Sec. 330.21 (5), Stats., bars after two years, "Any action to recover unpaid salary, wages, or other compensation for personal services, except fees for professional services." The executor asserts that the exception of fees for professional services is unconstitutional and that action for such fees is barred after two years. In Estate of Zeimet (1951), 259 Wis. 619, 49 N.W.2d 924, it was held that the exception would be severable if invalid and would not render the two-year limitation invalid. Thus the question of validity of the exemption was reserved.
In one recent decision there is language which suggests that the only cause of action barred by sec. 330.21 (5), Stats., may be those for compensation for services rendered by employee to employer. "Under the statute referred to, in view of all of the circumstances in this particular case, service would mean work done by one person at the request of another and would refer to a relationship of master and servant." Estate of Fredericksen (1956), 273 Wis. 479, 480, 78 N.W.2d 878. In other opinions it seems to have been assumed that it was immaterial whether the relationship was that of employer and employee. See Mead v. Ringling (1954), 266 Wis. 523, 64 N.W.2d 222, 65 N.W.2d 35, and Estate of Schaefer (1952), 261 Wis. 431, 53 N.W.2d 427. If the statute barred only those claims for compensation arising out of employment, the exception of fees for professional services would have accomplished nothing. For the background of sec. 330.21 (5), see ch. 574, Laws of 1945, Resolution No. 25, S., 1945 session; 34 Op. Atty. Gen. 139; Republic Pictures Corp. v. Kappler (8th Cir.), October 29, 1945, 151 F.2d 543, affirmed February 4, 1946, 327 U.S. 757, 66 Sup. Ct. 523, 90 L.Ed. 991; Bill No. 532, S., 1947 session.
Whatever the final interpretation of sec. 330.21 (5), Stats., we conclude that the legislature has the power to impose different periods of limitation on causes of action for compensation of employees, for compensation of nonemployees for nonprofessional services, and for fees for professional services. A statute is presumed to be constitutional. State v. Kerndt (1956), 274 Wis. 113, 115, 79 N.W.2d 113. Periods of limitation are subject to a relatively large degree of legislative control. Chase Securities Corp. v. Donaldson (1945), 325 U.S. 304, 314, 65 Sup. Ct. 1137, 89 L.Ed. 1628. The legislature may have considered that because wages, salaries, and other forms of compensation such as commissions and bonuses paid to employees are paid regularly at frequent intervals, a valid claim for such compensation is likely to be sued on if unpaid within a short period of time, while valid bills for fees for professional services normally are more often permitted to run for a longer period without suit. If it be eventually determined that the legislature placed the claims of independent contractors for nonprofessional services in the same class for this purpose as wage claims, this court cannot say that the legislature exceeded its powers. All these claims have in common the fact that they arise out of personal services rendered by claimant, but it cannot be denied that they differ considerably in the promptness of payment, customary method of collection, and the ordinary way in which the amount due is determined. There being some conceivable facts which may be thought to justify difference in treatment, it is not for the court to say whether the choice of two years for barring one class of claims and of six years for another is the wisest or most desirable choice. There being such basis for difference in treatment, an alleged debtor cannot assert that he is denied equal protection of the law because after two years the law protects him from one type of claim but not from another.
We have examined a number of decisions involving the validity of statutes of limitation. For the most part the question was whether the period allowed was so unreasonably short as to deprive persons of property rights. The only cases we have been able to find where discrimination between causes of action has rendered a statute of limitation invalid have related to those statutes which discriminated against rights arising under federal law. Republic Pictures Corp. v. Kappler, supra; Rockton Rion R. R. v. Davis (4th Cir. 1946), 159 F.2d 291; Caldwell v. Alabama Dry Dock Shipbuilding Co. (5th Cir. 1947), 161 F.2d 83.
We note that for many years, apparently without challenge, the Civil Code of Louisiana, Vol. 2 (2d ed.), pp. 960, 972, has imposed different periods of prescription (somewhat analogous to periods of limitation) on different classes of claims for services. Art. 3534 imposes one year on claims of "masters and instructors in the arts and sciences, for lessons which they give by the month" while art. 3538 imposes three years on claims of "teachers of the sciences who give lessons by the year or quarter." The one-year period also applies to actions of "workmen, laborers, and servants, for the payment of their wages," and the three-year period to actions for the "salary of overseers, clerks, secretaries" and of "physicians, surgeons, and apothecaries for visits, operations, and medicines."
We conclude that sec. 330.21 (5), Stats., does not bar the claim.
6. Work done for the partnership. The executor asserts that some of the services charged against John Bloomer were performed for the Bloomer partnership and that there can be no recovery in the estate because the partnership assets are sufficient to pay all partnership debts.
The trial court made a finding that none of the items are obligations of the partnership "in so far as affects the said claimants." To the contrary, however, some of the services were rendered for the benefit of the partnership, as an incident of its business, and at the request of deceased, who was a partner. No one has asserted that he lacked authority to act. The obligation to pay for the services was a partnership obligation. Sec. 123.06, Stats. While a partner may enter into a separate obligation to perform a partnership contract (sec. 123.12) there is no evidence that Mr. Bloomer did so.
Thus we reach the question whether, when a partner dies, a claimant to whom the partnership is indebted upon contract may file a claim in the estate of the deceased partner where the partnership is not shown to be insolvent. There is a split of authority upon the proper rule to be followed. Anno. 61 A.L.R. 1410. In 40 Am. Jur., Partnership, p. 354, sec. 320, it is asserted that under the better rule, a creditor may proceed against the estate of a deceased partner irrespective of whether the surviving partners are solvent.
Sec. 313.12, Stats., provides in part that, "When two or more persons shall be indebted on any joint contract . . . and either of them shall die his estate shall be liable therefor, and the claim may be allowed by the court as if the contract had been joint and several . . . and the other parties to such joint contract may be compelled to contribute or to pay the same if they would have been liable to do so upon payment thereof by the deceased."
This statute was held applicable to partnership debts in W. E. Smith Lumber Co. v. Estate of Fitzhugh (1918), 167 Wis. 355, 167 N.W. 455. Courts of several other states have reached similar results under like statutes. Hawkes v. First Nat. Bank (1928), 264 Mass. 545, 163 N.E. 249; McLain Badgett v. Carson (1842), 4 Ark. 164; Maxey v. Averill (1841), 41 Ky. 107.
New York follows the rule that a partnership creditor does not have a right to proceed against the estate of a deceased partner, without showing the insolvency of any partner who may survive. New York has adopted the Model Joint Obligations Act, as has Wisconsin. Our sec. 113.06, Stats., provides that, "On the death of a joint obligor in contract his executor or administrator (or estate) shall be bound as such jointly and severally with the surviving obligor or obligors." The corresponding section of the New York law was held inapplicable to partnership obligations in State Bank of Binghamton v. Bache (1935), 156 Misc. 503, 282 N.Y. Supp. 187.
We are urged to depart from the holding of the Smith Lumber Co. Case, and hold that unless the claimant can prove some degree of insufficiency if he sues the surviving partners, he can do no more than file a claim which is contingent upon such insufficiency. It is true that the facts there involved arose in 1909 before Wisconsin adopted the Uniform Partnership Act, ch. 123, Stats., and the Model Joint Obligations Act, ch. 113, Stats. We find nothing in these acts, however, which is necessarily in conflict with the holding of the Smith Lumber Co. Case.
On the contrary the Uniform Partnership Act contains the following entirely consistent provision: Sec. 123.31 (4), Stats., "The individual property of a deceased partner shall be liable for all obligations of the partnership incurred while he was a partner but subject to the prior payment of his separate debts." This section would give priority to separate debts if the estate were insufficient to pay both.
If it be better policy to follow the New York rule and to deem the references in sec. 313.12 and sec. 113.06, Stats., to joint indebtedness on contract inapplicable to partnership debts, this choice of policy almost forty years after the decision of the Smith Lumber Co. Case should be made by the legislature and not the court.
It should be noted that the authorities referred to deal with the particular situation of death of a partner, and the statutes, sec. 313.12 and sec. 113.06, deal with death of a joint obligor. Accordingly, this decision has no application to enforcement of partnership obligations under other circumstances.
By the Court. — Judgment affirmed.