#### Kelm, Respondent, vs. Woodbury, Appellant.

*September 17*

October *8, 1912.*

*Trial: Findings: Omission to malee: Appeal: Directing judgment: Accord and satisfaction.*

Omission of tbe trial court in this case to make any finding upon the issue as to whether there had been an accord and satisfaction was a failure to comply with sec.\2863, Stats. (1898); but, there being a clear preponderance of the evidence to the effect that the parties had settled all of .their, differences arising out of the contract in suit, the supreme court, instead of ordering a new trial, directs a judgment dismissing the complaint.

Akpeaí from a judgment of the cirep.it court for Eock county: Geoege Geimm, Circuit Judge.

*Reversed.*

This is an action to recover the balance due on a contract by which, it is alleged the defendant hired the plaintiff to work Ms farm for one year. The plaintiff claims that the defendant breached the contract, and he seeks to recover the unpaid portioji of the wages and the damages resulting from the breach.

The defendant is a resident of Illinois. He owns a farm of 480 acres in the town of Center, Eock county, this state, which the plaintiff had worked for him in 1908 and 1909. In the latter part of March, 1910, the .defendant and the plaintiff made a verbal contract, whereby, in consideration of $500 to be paid in monthly instalménts, the plaintiff was to work the defendant’s farm for the ensuing year. The plaintiff was to have the use of the house on the premises, and a garden, was to have a share in some of the crops, and, in accordance with the practice between the parties during the previous two years, was to have food from the farm for Ms animals and chickens. He was to secure the assistance of the members of his family in doing the chores on the farm, was to board the defendant free of charge, and was to board 'any employees of the defendant at $3 per week for each person.

*500About October 15th. the plaintiff, as the result of differences between him and the defendant, moved from the premises, receiving at the time a check for $65 from the defendant.

The defendant upon the trial of this action testified that the children of the plaintiff did not work on the farm according to the contract, that he was compelled to pay the son for whatever work he did, that he was compelled to pay board for himself and a higher rate for his employees than the contract ' provided, and that the plaintiff just before he removed from the premises was disposing of more than his share of the crops.

It is undisputed that there was trouble between the parties, that the defendant endeavored to discharge the plaintiff from his employ, notified him to vacate the house, and that the defendant engaged another person to take charge of the place.

On October 15th, when the plaintiff had had no wages since the 1st of September, the defendant came to the house with Mr. Pellett and Mr. Reigert, the man he had employed to take charge of the farm, for the purpose of coming to some agreement with the plaintiff so that the new employee might get possession of the house. The plaintiff refused to vacate until the defendant should settle with him. He demanded $200, claiming that he had been employed for a year at $500 and that the defendant had discharged him without cause. The defendant was willing to pay the plaintiff his back wages but nothing more, and claimed that only from $40 to $45 was due the plaintiff and that the contract ran only from month to month. Finally, a check for $65 was written by the defendant and was left to be delivered to the plaintiff when he should leave the premises. A few days later the plaintiff left; the check was given to the plaintiff’s wife and was cashed by the plaintiff and his wife. The defendant claims that the check was in full settlement of all differences between him and the plaintiff. Plaintiff claims that it was only a partial payment *501and was tbe amount due bim for services up to tbe time be left tbe premises. Tbe defendant, Mr. Pellett, and Mr. Eei-gert, tbe person wbo succeeded tbe plaintiff on tbe farm, testified tbat tbe $65 paid tbe plaintiff was agreed upon by them as a settlement in full of all tbe differences between tbe plaintiff and tbe defendant. Tbey testified tbat tbe plaintiff bad at first demanded $200, bad reduced bis demand to $100 and then to $75, and tbat upon tbeir suggestion be finally agreed to tabe $65 in full of all claims against tbe defendant. Tbe plaintiff testified tbat it was understood tbat it was to apply on tbe wages due bim and tbat it was paid only to induce bim to vacate tbe premises so as to give Mr. Eeigert possession of tbe farm. There was no statement on tbe cbecb as to whether it was in full or was only a partial payment.

Tbe court found tbe facts as above set out as to tbe making of tbe contract, tbat tbe plaintiff was ready and willing to perform all of tbe conditions of tbe contract, and tbat be bad duly performed bis duties under tbe contract until October 22, 1910, tbat tbe defendant without justification bad discharged tbe plaintiff and caused bim to surrender possession and to remove from tbe premises, and bad failed to furnish tbe plaintiff with food and shelter for bis animals and chickens as required by tbe contract. Tbe court also calculated tbe amount paid to tbe plaintiff up to tbe time be left tbe premises and tbe amount still due bim .under tbe contract after deducting tbe amount earned by bim after be left tbe premises and up to tbe time of termination of tbe contract, and awarded plaintiff judgment for tbe amount thus found to be due bim, namely, $247.37, with interest from April 1, 1911, and for costs.

This is an appeal from tbe judgment on tbe findings in plaintiff’s favor.

*Arthur M.*Fisher, for tbe appellant.

*Thos. 8.*Nolan, for tbe respondent.

*502SiebecKER, *J.*

Tbe appellant asserts that tbe evidence on tbe question of a settlement by tbe parties of all matters in controversy clearly establishes that after plaintiff’s discharge from defendant’s employ such a settlement was made and that tbe plaintiff accepted $65, the amount agreed upon by tbe parties, in full payment of tbe amount due him under such settlement. Tbe plaintiff denies that tbe settlement was made and claims that at tbe time of tbe negotiations for a settlement be claimed and demanded a sum for satisfaction of bis damages for defendant’s breach of contract far in excess of tbe $65 be received as avails of tbe check defendant drew in bis favor on that day and which was subsequently delivered to plaintiff’s wife, and that tbe $65 so received was intended to apply as wages due him under their contract and was paid him to then vacate and remove from tbe farm. This claim of the plaintiff is denied by tbe defendant, who testifies that be and tbe plaintiff, in tbe presence of tbe witnesses Pellett and Reigert, negotiated on October 15, 1910, at tbe farm, to settle all matters in controversy between them arising out of tbe transactions involved in this litigation. It is shown that these four men did meet as stated and that a settlement of tbe diffei’ences between tbe plaintiff and tbe defendant was undertaken and discussed by them all. Tbe evidence of tbe defendant and of tbe witnesses Pellett and Reigert is clearly to tbe effect that tbe plaintiff in tbe beginning of tbe negotiations demanded $200 from tbe defendant to satisfy bis demands and that tbe defendant firmly asserted that be owed him nothing in- excess of tbe balance due plaintiff for services at the contract rate and that this did not exceed $40, that tbe plaintiff during,tbe negotiations reduced tbe amount of bis demand to $75, that thereupon tbe witnesses suggested to tbe parties that they compromise by dividing tbe difference between tbe two sums, and that tbe parties then agreed upon $65 as tbe amount and then and there assented thereto, and that tbe defendant drew a check on bis bank for this amount, payable to *503tbe plaintiff’s order, and left it witb tbe witness Eeigert with directions to deliver it to tbe plaintiff wben be vacated and rer-moved from tbe farm. There is no .dispute that tbe check was delivered to tbe plaintiff’s wife on tbe day tbe plaintiff vacated tbe farm and that tbe plaintiff theréíifter received tbe proceeds thereof. Tbe record discloses that tbe issue of a settlement was tbe principal one litigated upon tbe trial and that tbe defendant’s counsel submitted a formal finding to tbe court and requested that tbe court find as fact that tbe settlement was made and carried out as the defendant claimed throughout tbe trial of tbe case. Tbe court did not adopt this requested finding or its equivalent, but - wholly omitted to make a finding on this issue and made findings in tbe case as though no such issue bad been presented,and litigated. Tbe findings of tbe court, tbe details of which appear in tbe foregoing statement and upon which tbe court found in plaintiff’s favor, embrace tbe other issues litigated, and tbe court awarded plaintiff recovery for tbe amount of damages found. It is difficult to perceive bow this omission could occur, under tbe circumstances attending tbe trial and in view of tbe actual proceedings that took place, since tbe issue, whether there was such a settlement or not, was apparently tbe principal contest at tbe trial. Tbe court may have concluded that tbe findings made amounted by implication to a finding that there was no settlement as claimed by tbe defendant. If so, this is erroneous, for no such implication can be indulged in tbe light of tbe record as presented. Tbe result is that there was a failure to comply witb tbe provisions of sec. 2863, Stats. (1898), which requires, in trials of questions of fact by tbe court, that its decision shall be in writing and shall state separately tbe facts found and tbe conclusions of law thereon. This record is wholly barren of anything showing that tbe court determined this issue and it must be so treated. It is obvious that this issue was fully tried and submitted and should have been determined by an express finding of fact, *504either affirming the settlement as alleged and claimed by the defendant, or denying it, according to the weight of the evidence. *Fogo v. Boyle,*130 Wis. 154, 109 N. W. 977; *Young v. Miner,*141 Wis. 501, 124 N. W. 660, and cases cited.

In this state o? the case this court is called upon to determine whether the state of the case demands a reversal of the judgment and a new trial, or whether the evidence so clearly preponderates in favor of the claim of either party upon this issue as to require that judgment be directed in favor of the party entitled thereto upon the record. ' *Brown v. Griswold,*109 Wis. 275, 85 N. W. 363; *Closuit v. John Arpin L. Co.*130 Wis. 258, 110 N. W. 222; *Jansen v. Huerth,*143 Wis. 363, 127 N. W. 945; *Damman v. Damman,*145 Wis. 122, 128 N. W. 1062. An examination of the record persuades us that the preponderance of the evidence is clearly to the effect that the parties settled all their differences involved in this case and that the trial court should have found that there was an accord and satisfaction, as alleged by the defendant, which discharged the defendant from all liability arising out of the transactions embraced in the issues presented by the pleadings and the evidence. This result necessitates reversal of the judgment appealed from and entitles the defendant to judgment of dismissal of the action and for costs.

*By the Court.-*— -The judgment appealed from is reversed, and the cause remanded with directions to the trial court to award judgment dismissing the plaintiff’s complaint.