jgy (jowr^
PaiNE, J.
This case involved the right of the plaintiff to a conveyance from the defendants of an undivided quarter of a certain tract of land. The defendants’ intestate denied the right, and this suit was begun to enforce it. The circuit court first decreed against the plaintiff, and from that decree he appealed to this court, where a judgment was rendered establishing his right to a conveyance upon the payment of such sum as might be found due upon an account to be taken. The principles upon which the account should be taken were also settled. An account was taken before a referee, and on another appeal by the plaintiff, this court held that it had not been properly taken, and ordered a new account to be taken in accordance with the principles first settled, which were then more fully explained. Such other account has been taken, and judgment rendered by the circuit court upon the referee’s report, from which it seems that both parties have appealed. The defendants now claim that all the questions ever involved in the case, though twice decided by this court, are re-ojiened, and that we are now to determine not only whether this account has been properly taken, in pursuance of the previous decisions, but also whether those decisions were themselves right, and whether the plaintiff is entitled to a conveyance upon any terms. To this proposition we cannot assent. The judgment of this court establishing the plaintiff’s right to a conveyance, was final upon that question. True, an accounting was required to determine what the plaintiff should pay, if anything. But that was the only question left open. His right to a deed on the payment of such sum as might be found due, was positively and finally adjudicated. The only way in which it could have been again opened would have been by a motion for a rehearing. This doctrine was fully [43]*43settled when tbe case was last bere. See tbe first part of tbe opinion of Justice Cole, 8 Wis., 462. See also Bridge Co. v. Stewart et al., 3 How. U. S. Rep., 413; Parker v. Pomeroy, 2 Wis., 112; Downer v. Cross, id., 381; Eastman v. Harteau, 12 Wis., 275; in allwbicb tbe same rule is asserted. It seems to us too obviously correct to require further examination.
This leaves only tbe necessity of deciding upon tbe exceptions taken to tbe commissioner’s report. Tbe plaintiff objects to tbe allowance of tbe cost of tbe new saw mill, as a part of tbe necessary expenditures upon tbe property. But we tbink tbe cost of tbis, as well as of tbe main dam, and other improvements of a kindred character, was very properly allowed, within tbe principles established upon that point by tbis court, 8 Wis., 464, 465. Tbe fact that tbe parties contemplated tbe building up of a town, was there held to have an important bearing in determining what improvements were “necessary” within tbe meaning of tbe contract and of tbe former decree of tbis court, and the court expressly referred to tbe “ new saw mill, dam,” &c., as being fairly within tbe rule which it then established. We tbink that rule was proper, and that tbe commissioner properly followed it in allowing tbe cost of these items.
And in tbis connection it will be as well to notice one of tbe defendants’ exceptions, that is, to tbe disallowance of the cost of the lock. It is true tbe lock was built after tbis suit was commenced. And it is also true that tbe former decision of tbis court establishes different rules respecting improvements made before and after tbe filing of tbe bill. Those made before which were necessary and proper in view of tbe original object of tbe parties to build up a town, were to be allowed. But after tbe suit was commenced, those only were to be allowed which were necessary to tbe due use and preservation of tbe property. Tbe commissioner disallowed tbe cost of tbe lock upon tbe ground that it did not come within tbe latter rule. If tbe lock alone is to be considered, tbis would be correct. But tbe charter by which tbe defend- ■ ants were authorized to maintain a dam, required tbe erection of a lock as a condition, and proceedings were instituted [44]*44against tbem for maintaining tbe dam without complying it. They then erected tbe lock in question, which, though somewhat more expensive than the one required by the charter, the testimony seems to show, was a sufficient improvement to render it desirable, if any lock at all was to be built. In view of this provision of the charter, we think the lock may fairly be considered an improvement “ necessary for thé due use and preservation of the property,” within the rule applicable to improvements after the suit was commenced. The dam having been previously built, and it being held a proper improvement at the time it was made, the erection of the lock became necessary under the charter, for the preservation of the dam, and consequently for the due use of all the property whose use depended on the existence of the dam. It should therefore have been allowed.
On the first accounting, it seems, the defendants’ books of account and vouchers were admitted as direct evidence, which this court held improper. 8 Wis., 467-8. The plaintiff’s counsel contends that the evidence upon the last accounting was equally improper, and did not differ substantially from the other. But we do not think so. The court placed its rejection of these accounts before upon the express ground that “ many of the charges were so vague and indefinite that it was impossible to tell to what business or transactions they did relate, and there was no evidence explaining them." But upon the last accounting these books, or schedules drawn from them, were used as memoranda, to refresh the memory of the witnesses, and they were substantiated by the evidence of Eoberts and Loyal H. Jones explaining them. This is, from the necessity of the case, the only kind of evidence by which such accounts could ever be substantiated. It is not to be expected that aey party carrying on a large amount of business, keeping long accounts running through ten or twelve years, would be able to produce upon the stand all the parties to whom he may have paid money. Nor is it to be expected that it is within the power of human memory, unaided, to recollect the items of such an account with sufficient accuracy of detail*to testify specifically to any considerable portion of them. The most that can be done is [45]*45for persons so conducting business to keep accounts and to take vouchers, and when these are not direct evidence tween the parties, they may be used as memoranda to aid the memory of witnesses who had otherwise actual knowledge of the transactions and of the general correctness of the books and vouchers. See Sexsmith v. Jones and others, 18 Wis., 565. The evidence upon the last accounting was of this character. Eoberts was present, as book-keeper and otherwise, during a large portion of the time in which the accounts accrued. He testifies that many of the entries were made by him, and that he knew generally of their correctness, except in some instances when he was directed to make entries where he had no personal knowledge of the facts. Loyal S. Jones also testifies that he was present during the whole time from December, 1846, and “was familiar with the business and its transactions.” He acted as administrator after the death of Harvey Jones, and in that capacity paid out the greater part of the account for expenses and improvements. He goes through the schedules made out from the books and vouchers, and by their aid testifies to their general correctness, and to the actual expenditure of the various and voluminous items.
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jgy (jowr^
PaiNE, J.
This case involved the right of the plaintiff to a conveyance from the defendants of an undivided quarter of a certain tract of land. The defendants’ intestate denied the right, and this suit was begun to enforce it. The circuit court first decreed against the plaintiff, and from that decree he appealed to this court, where a judgment was rendered establishing his right to a conveyance upon the payment of such sum as might be found due upon an account to be taken. The principles upon which the account should be taken were also settled. An account was taken before a referee, and on another appeal by the plaintiff, this court held that it had not been properly taken, and ordered a new account to be taken in accordance with the principles first settled, which were then more fully explained. Such other account has been taken, and judgment rendered by the circuit court upon the referee’s report, from which it seems that both parties have appealed. The defendants now claim that all the questions ever involved in the case, though twice decided by this court, are re-ojiened, and that we are now to determine not only whether this account has been properly taken, in pursuance of the previous decisions, but also whether those decisions were themselves right, and whether the plaintiff is entitled to a conveyance upon any terms. To this proposition we cannot assent. The judgment of this court establishing the plaintiff’s right to a conveyance, was final upon that question. True, an accounting was required to determine what the plaintiff should pay, if anything. But that was the only question left open. His right to a deed on the payment of such sum as might be found due, was positively and finally adjudicated. The only way in which it could have been again opened would have been by a motion for a rehearing. This doctrine was fully [43]*43settled when tbe case was last bere. See tbe first part of tbe opinion of Justice Cole, 8 Wis., 462. See also Bridge Co. v. Stewart et al., 3 How. U. S. Rep., 413; Parker v. Pomeroy, 2 Wis., 112; Downer v. Cross, id., 381; Eastman v. Harteau, 12 Wis., 275; in allwbicb tbe same rule is asserted. It seems to us too obviously correct to require further examination.
This leaves only tbe necessity of deciding upon tbe exceptions taken to tbe commissioner’s report. Tbe plaintiff objects to tbe allowance of tbe cost of tbe new saw mill, as a part of tbe necessary expenditures upon tbe property. But we tbink tbe cost of tbis, as well as of tbe main dam, and other improvements of a kindred character, was very properly allowed, within tbe principles established upon that point by tbis court, 8 Wis., 464, 465. Tbe fact that tbe parties contemplated tbe building up of a town, was there held to have an important bearing in determining what improvements were “necessary” within tbe meaning of tbe contract and of tbe former decree of tbis court, and the court expressly referred to tbe “ new saw mill, dam,” &c., as being fairly within tbe rule which it then established. We tbink that rule was proper, and that tbe commissioner properly followed it in allowing tbe cost of these items.
And in tbis connection it will be as well to notice one of tbe defendants’ exceptions, that is, to tbe disallowance of the cost of the lock. It is true tbe lock was built after tbis suit was commenced. And it is also true that tbe former decision of tbis court establishes different rules respecting improvements made before and after tbe filing of tbe bill. Those made before which were necessary and proper in view of tbe original object of tbe parties to build up a town, were to be allowed. But after tbe suit was commenced, those only were to be allowed which were necessary to tbe due use and preservation of tbe property. Tbe commissioner disallowed tbe cost of tbe lock upon tbe ground that it did not come within tbe latter rule. If tbe lock alone is to be considered, tbis would be correct. But tbe charter by which tbe defend- ■ ants were authorized to maintain a dam, required tbe erection of a lock as a condition, and proceedings were instituted [44]*44against tbem for maintaining tbe dam without complying it. They then erected tbe lock in question, which, though somewhat more expensive than the one required by the charter, the testimony seems to show, was a sufficient improvement to render it desirable, if any lock at all was to be built. In view of this provision of the charter, we think the lock may fairly be considered an improvement “ necessary for thé due use and preservation of the property,” within the rule applicable to improvements after the suit was commenced. The dam having been previously built, and it being held a proper improvement at the time it was made, the erection of the lock became necessary under the charter, for the preservation of the dam, and consequently for the due use of all the property whose use depended on the existence of the dam. It should therefore have been allowed.
On the first accounting, it seems, the defendants’ books of account and vouchers were admitted as direct evidence, which this court held improper. 8 Wis., 467-8. The plaintiff’s counsel contends that the evidence upon the last accounting was equally improper, and did not differ substantially from the other. But we do not think so. The court placed its rejection of these accounts before upon the express ground that “ many of the charges were so vague and indefinite that it was impossible to tell to what business or transactions they did relate, and there was no evidence explaining them." But upon the last accounting these books, or schedules drawn from them, were used as memoranda, to refresh the memory of the witnesses, and they were substantiated by the evidence of Eoberts and Loyal H. Jones explaining them. This is, from the necessity of the case, the only kind of evidence by which such accounts could ever be substantiated. It is not to be expected that aey party carrying on a large amount of business, keeping long accounts running through ten or twelve years, would be able to produce upon the stand all the parties to whom he may have paid money. Nor is it to be expected that it is within the power of human memory, unaided, to recollect the items of such an account with sufficient accuracy of detail*to testify specifically to any considerable portion of them. The most that can be done is [45]*45for persons so conducting business to keep accounts and to take vouchers, and when these are not direct evidence tween the parties, they may be used as memoranda to aid the memory of witnesses who had otherwise actual knowledge of the transactions and of the general correctness of the books and vouchers. See Sexsmith v. Jones and others, 18 Wis., 565. The evidence upon the last accounting was of this character. Eoberts was present, as book-keeper and otherwise, during a large portion of the time in which the accounts accrued. He testifies that many of the entries were made by him, and that he knew generally of their correctness, except in some instances when he was directed to make entries where he had no personal knowledge of the facts. Loyal S. Jones also testifies that he was present during the whole time from December, 1846, and “was familiar with the business and its transactions.” He acted as administrator after the death of Harvey Jones, and in that capacity paid out the greater part of the account for expenses and improvements. He goes through the schedules made out from the books and vouchers, and by their aid testifies to their general correctness, and to the actual expenditure of the various and voluminous items. He also testifies that these items were for expenses and improvements on the property in dispute. The evidence is clearly of a different character from that which was before held improper, and is of the most satisfactory character by which Jtt would seem possible to substantiate an account of such long standing.
But the plaintiff excepted to the conclusion of the commissioner as to the effect of this evidence. The commissioner reported that between the 14th day of April, 1849, when the suit was commenced, and the time of closing the proofs, there had been expended upon the property, for improvements and the due use and preservation thereof, the sum of $30,352.51. He gives a schedule, which does not show the items of the account allowed by him as constituting this gross sum, but simply consists of the gross amounts expended during each six months. What the items were appears only in the proofs, and there is nothing to show what items were allowed and what disallowed.
[46]*46The correct way in deciding upon such an account would be for tbe report to show what items were allowed and what disallowed. Then either party could except to the particular items objected to, and the sufficiency of the exceptions could be determined on a review, without re-examining the whole. But it is true here that the commissioner does refer to several items which he disallows; the locks, the judgment of Jones & Tale, and the charge for services by Loyal H. Jones. And perhaps the fair construction of this is, that the accounts, as stated in the evidence reported, were allowed, with the exception of those items. The plaintiff’s counsel does not object to the figuring of the commissioner, but to the character of the evidence by which the accounts were proved. Upon that we have already commented, and it is not to be expected that this court would take time to foot up the items of a large account like this, and calculate the interest upon each, in order to determine, upon a general exception to the conclusion of the commissioner, whether that conclusion was correct. We have looked through the items of the accounts. They purport generally to be of such a character as entitles them to be allowed. The testimony is positive that they were for expenses upon this property. And assuming the footings to be correct, we think the testimony is such as would sustain the finding. We shall therefore confine ourselves to the consideration of those items which are specifically objected to by the one or the other of the parties.
The defendants object that they were not allowed for the services of Harvey Jones in his lifetime. Loyal H. Jones testifies that there was an agreement between the parties, that “it was right to allow each for the services he rendered in the general supervision of the property,” and also that Reed charged for his own services. Reed was sworn, and testified that no such agreement was made; but his testimony was objected to, and we think was inadmissible, inasmuch as the opposite party defended as administrator. This leaves it to be determined on the testimony of Jones; and upon that, whatever might have been the rule in the absence of such-an agreement, we think the charge for the services of [47]*47Harvey Jones during Ms life time should have been allowed at wbat they appeared from the evidence to have worth. And it must be conceded that such a charge has very strong equitable reasons to support it. If two parties enter into a joint speculation to build up a town by making improvements upon their property so as to induce settle ment and thereby enhance its value, if one party not only advances his capital but devotes his whole services to the enterprise, it certainly does not seem just that the other, who may have been personally engaged in some other profitable business, should come in for his share of the increased value of the property derived from such services, without allowing anything for them to the party who rendered them.
But notwithstanding these considerations, we think the charge for the services of the administrator was properly disallowed. The agreement by the parties did not extend to these. And the administrator, being a. trustee, whose compensation is specifically fixed by statute, subject to the allowance of additional compensation in certain cases by the probate court, we do not see how, in a collateral proceeding like this, he could be allowed a salary like that which is claimed for him in this case. To adopt such a rule would establish an inducement for such trustees to prolong litigation of this sort, and to neglect the settlement of the estates for which they acted.
The appellants also except to the manner in which interest was calculated on their receipts. They contend that they were entitled to have the sums received applied first to the extinguishment of the interest due them upon the sums expended, and that they should have been charged with interest only on the excess of receipts remaining after such application. This is undoubtedly the general rule in respect to an accounting by a creditor in possession of property, the rents and profits of which he is bound to apply in payment of the debt due him. See Green v. Westcott, 13 Wis., 606, and cases cited. Upon a careful consideration of the facts of this case, we are unable to see why the same rule should not he applied. The relation of the parties was entirely analogous to that of mortgagor and mortgagee, and it [48]*48would seem that their rights in accounting would be the The only room for doubt upon this point is, whether the former decree of this court did not imperatively prescribe the rule adopted by the commissioner, of charging interest upon the entire amount of the receipts without first applying any portion of them to the extinguishment of the interest due upon the advances. The language used in the decree, 8 Wis., 419, is certainly capable of that construction, and taken literally is, perhaps, incapable of any other. It directs that each party shall be charged with interest upon “ all moneys received,” &c. Still we think there was no intention, in using this general language, to cut off the right of the party receiving, to apply the moneys received, first, to the payment of any interest that might be due to himself from the other. Thaf particular question was not in the mind of the court, and in directing generally that each party should be charged with interest on all moneys received, its language should be construed as being intended to be subject to any legal right which either had to first apply such moneys to the extinguishment of interest due himself. A computation of the interest upon the latter theory is attached to one of the briefs of the defendants’ counsel, and if correct, it shows a difference of several thousand dollars in their favor. We have not gone over with the figures and shall not. But we think the defendants are entitled to such a change in the general results arrived at by the commissioner as this change in the manner of calculating would produce.
The defendants’ counsel also claim that the report is incorrect in omitting a number of lots, which the proof shows to have been sold previous to the commencement of the suit, and with the proceeds of which the defendants are charged in the account.
It appears from the evidence referred to by them, that some omissions of that character were made, in the schedule of lots sold as reported by the commissioner, though for most of them nothing was received, except in the way of improvements which the purchasers agreed to make. We do not see how it is very material to have this correction made, for [49]*49tbe defendants will be bound to convey only an undivided fourth of wbat remained unsold at tbe commencement of suit, and of course could not b¿ beld responsible for .failing to give a title to any lots that were sold before. We suppose they might show when lots were sold, although not mentioned in the report. But for the sake of greater certainty it might be well enough to correct the report in that respect.
Lastly, upon the subject of costs, we think this case entirely similar in all the points that have a bearing upon that question, to that of Green v. Westcott, before referred to. Reed was obliged to come to this court to obtain an adjudication in favor of his right to a conveyance at all. In prevailing here upon that question he was allowed costs, because his right had been wrongfully resisted by the defendants. But that question being adjudicated in his favor, he stands then in a position very similar to that of a mortgagor coming to redeem, where something still remains to be paid. In such cases the mortgagor, not having tendered all that was due, is generally required to pay costs. But here the expense of accounting has been considerably increased by the defendants’ wrongfully resisting the plaintiff’s right to a conveyance, through this protracted litigation. And in view of all the facts, we think the judgment should be without costs to either party.
The result of our conclusions is, that the finding and judgment should be modified as follows:
1st. By allowing to the defendants the expense of the lock.
2d. By allowing them the value of the services of Harvey Jones in improving the property.
3d. By applying the moneys received by the defendants, first to the extinguishment of interest due on the advances by them, and charging them with interest on the excess oniy.
4th. By giving costs to neither party.
And as in the case of Green v. Westcott we shall leave the computations necessary for such modifications to be made in the court below.
[50]*50*s mo^e<l in the respects stated, witb costs to tbe defendants in tbis court, and tbe cause remanded witb directions that a judgment, so modified, may be entered.