
    Pierce, Appellant, vs. Stitt, Administrator, Respondent.
    
      October 6
    
    October 24, 1905.
    
    
      ‘Services in execution of sealed power of attorney: Limitation of actions.
    
    "Where services were rendered or moneys expended in execution of a power of attorney, under seal, containing no covenant or provision as to payment for such services or expenditures, the cause of action therefor arises upon an implied promise and not upon the sealed instrument, and the action must be commenced within six years under subd. 3, sec. 4222, Stats. 1898, not within twenty years under subd. 2, sec. 4220.
    Appeal from a judgment of the circuit <?ourt for Milwaukee county: LaweeNCe W. Halsey, Circuit Judge.
    
      Affirmed.
    
    The appeal is from a judgment of the circuit court for Milwaukee county affirming the judgment of the probate court disallowing claim of appellant against the estate of Olive A. Stitt. Olive A. Stitt (formerly Olive A. Blake), before ber marriage to Stitt, and one Kittie Blake made and delivered to appellant on tbe 12th day of September, 1885, a general power of attorney authorizing him to collect and enforce .against one Damon Ooates, of the city of New York, all claims and demands that they or either of them had, personally or individually, separately or jointly, against said Coates, as well as all other claims and demands that they or either of them had, and to receipt therefor, and commence, institute, settle, compromise, and prosecute any civil or criminal action or proceeding necessary to enforce any such claim, with full power and authority in the premises, and with power of substitution and revocation. The power of attorney contained no covenant or provision to pay said Pierce for his seryices, or for money expended in the execution of the power. Under ■said power appellant retained one Herdegen, an attorney at law, who performed services and expended money in the matters referred to in the power in the sum of $310. Mrs. Stitt ■died, and this claim was filed in the probate court by appellant against her estate and disallowed, and on trial in the circuit court on appeal the judgment of the probate court was affirmed, from which judgment this appeal was taken.
    For the appellant there was a brief by McMroy & Fsch-weiler, and oral argument by P. 0. Fschiueiler.
    
    For the respondent there was a brief by Scheiber & Orth, .•and oral argument by Fred Scheiber.
    
   UeRWIN, J.

It appears from the evidence that the services were performed by Herdegen soon after the execution of the power of attorney, and between the 14th and 20th of September, 1885; that appellant went with Herdegen to New York ■and paid his own expenses. He also paid Herdegen’s bill, the last payment being made December 3, 1885, and took a receipt in full. Appellant also took an assignment of the claim Trom Herdegen December 8, 1885. It also appears that during Mrs. Stitt’s lifetime, and in October, 1885, Herdegen presented bis bill for services to ber and asked for a settlement. Appellant offered to prove that Mrs. Stitt made two payments of $5 each, one September 5, 1891, and tbe other August 6, 1897, wbicb evidence was objected to, on tbe ground that tbe witness was incompetent to testify under tbe statute, and ruled out. Tbe court was clearly right in excluding this evidence, it being a transaction with deceased and incompetent, and it does not appear that appellant complains of tbe ruling.

Tbe main contention of appellant for a reversal is that tbe claim for tbe $310 paid to Herdegen is upon a sealed instrument and does not outlaw short of twenty years. There is no dispute but that tbe six-year statute bad run upon the-claim long before it was filed. It is not material in this case whether tbe claim was one against deceased and assigned to Pierce, or a claim of Pierce against deceased for moneys paid out by him for ber benefit. In either case it outlawed in six years. It was not a claim upon a sealed instrument, within tbe meaning of subd. 2, sec. 4220, Stats. 1898, wbicb provides that an action upon a sealed instrument must be commenced within twenty years. It is _ very plain that tbe action upon tbe account in suit is not within this statute. Tbe proanise to pay is not in tbe instrument itself, but independent of it. Tbe power simply authorized tbe expenditure of tbe money, and tbe law implies a promise to- pay. Tbe action is upon tbe implied promise, and not upon tbe sealed instrument. Duecker v. Goeres, 104 Wis. 29, 80 N. W. 91; Phelan v. Fitzpatrick, 84 Wis. 240, 54 N. W. 614; Spencer v. Holman, 113 Wis. 340, 89 N. W. 132. It follows that the judgment of tbe court below is correct and should be affirmed.

By the Oowrt. — Tbe judgment of tbe court below is affirmed.  