145 Wis. 31 | Wis. | 1911
The pivotal question upon the merits of the case is whether the evidence justifies the referee’s finding that the parties were partners. No formal agreement of partnership was ever made, although a written agreement was drawn by defendant but never signed by the plaintiff. The referee arrived at his conclusion as an inference of fact from the conduct of the parties themselves during the time from November 2, 1902, to March, 1905, during which time they confessedly operated the telephone system together and appeared to be partners. The fact was undisputed that Smith took such title as was taken to the original stem of the system, which was bought of one Drescher, and it was also undisputed that plaintiff advanced all the money necessary to make the original purchase, to buy new material, and to operate the business. From this time the parties operated the business together, the exchange being located in the plaintiff’s house. There were many pages of testimony taken, and this opinion might be extended to great length in reviewing the evidence on the subject, but it does not seem that'any valuable purpose would be gained thereby.
The claim is made that the telephone system in question was real estate and that a parol agreement of partnership would be void, because it would offend against the statute of frauds. It is unnecessary to consider whether the telephone lines in question were real property or not. If they were, and if Smith held the legal title thereto, still, if they were contributed to the capital of the firm business, they would assume the character of firm property so far as paying the debts and closing out the partnership is concerned, even though the legal title remained in Smith. This is elementary.
We think the appellant’s objection to the allowance of the item of $911.25 in the receiver’s account for compensation should have been sustained.
In tbe present case there is an additional reason why no compensation should be allowed. Upon tbe plaintiffs mo.tion for tbe appointment of a receiver it appears by tbe recitals of tbe order tbat tbe attorneys for tbe defendant appeared, and tbe order then proceeds as follows:
“And tbe attorneys for tbe defendant having stated in open court tbat if tbe court should see fit to appoint a receiver the defendant would have no objection personally against tbe plaintiff, August (?. Bartelt, being left in possession and management of the property, providing tbe fees of tbe receiver could be avoided thereby.”
At tbe close of this recital tbe court proceeds to make tbe appointment of tbe plaintiff. This order was made by Judge Eowleb at Eond du Lac, while tbe final judgment in tbe case was rendered by-Judge KibwaN at Sheboygan. This recital was evidently considered of considerable importance by Judge Eowleb, for a part of it was interlined after tbe typewritten order bad been prepared. We can construe it in no other way except as meaning tbat tbe defendant consented
The charge for counsel fees is attacked for the reason that the plaintiff should not, as receiver, have consulted the counsel who represented him as a party, because their advice would probably not be impartial. The general rule that receivers should not employ the counsel of either party to the litigation is approved and very forcibly stated in Speiser v. Merchants’ Exch. Bank, 110 Wis. 506, 86 N. W. 243, and we have no intention of modifying anything that is there said. It is there recognized, however, that where it is made clear that their services to the receiver were of such a nature that no clash of interests was involved between their duties as counsel for the party and as counsel for the receiver, payment for their services may be approved. This is certainly reasonable doctrine. If, as appears in the present case, the advice of counsel was simply with relation to details of his duties, assisting him at the sale of the property and drawing and submitting his report, all being matters as to which there was no conflict but rather community of interest between the parties, we think a reasonable bill, such as was here allowed, for counsel fees to plaintiff’s own counsel may be properly approved, though the practice is not to be advised. The result
By the Court. — Judgment modified as indicated in tbe opinion, and as so modified affirmed, with costs to tbe appellant.