Bright v. Carter

117 Wis. 631 | Wis. | 1903

Siebeckee, J.

It is insisted that the testimony of respondents should not have been received by the court over objection, for the reason that they wholly failed to qualify as competent witnesses on the subjects upon which they testified. The respondents were examined as to what agreement, if any, was made by them with defendants for the advancement of moneys to develop the mines as above stated, and at what time and in what amounts such moneys were advanced by them to defendants. It appears that defendants and respondents had personal interviews concerning the purchase of an interest in the mining property in question, and that finally, at a meeting of all the parties in Spokane in the latter part of the year 1893, respondents agreed with defendants to purchase a half interest in the mines, whereby respondents were to furnish all the money required to develop tire enterprise. Respondents also testified from personal knowledge to moneys actually sent for suck purpose, and to admissions made by Garter and Clark that the amounts now claimed to be due and unpaid were correct. It thus appears that the witnesses had personal knowledge of these transactions. It must therefore be held that the testimony was properly received, though they did at times in their examination refer to facts and circumstances of the transactions not entirely within their personal knowledge. If, then, the testimony was properly received by the court, was the cause of action supported by the uncontradicted evidence ? We are unable to find in the record any conflict in the evidence material to the issue. Proof of the material facts is sufficiently explicit to establish the claim. No different conclusion could have been reached. The court was therefore right in directing the jury to find a verdict upon motion.

It is contended, however, that the court erred in directing a verdict, for the reason that the proof failed to establish legal grounds for recovery, in that the evidence shows the sums advanced by respondents were for partnership purposes, constituting a claim against the copartnership, and that there is no evidence tending to show one half of such advancements to have been a loan to defendants individually, to be applied by them as their part of the moneys required to carry on the mining enterprise. This construction of the evidence ignores its plain and evident meaning. The respondents testified directly to such an arrangement. The conduct of defendants in acknowledging such an indebtedness in the various ways tends to prove it. The fact that they pledged their individual securities, as well as part payment by them on the one-half of such advancements are facts of such significance and weight, in view of all the circumstances in the case, as to leave no room for a different inference. The evidence must be held to establish that it was agreed between them that one half of the money advanced for the purposes mentioned in carrying on the mining enterprise was a personal loan to defendants, for which they became individually liable. It also appears that, when Carter purchased Clark’s interest in the business, it was understood that he would assume personal liability for advancements made thereafter.

The fact that respondents received some securities for these debts does not of itself extend the time of payment, nor suspend their right of action. Such securities were not taken in lieu of or in discharge of the debt, and cannot thereafter affect the remedy on the original obligation. Paine v. Voorhees, 26 Wis. 522; First Nat. Bank v. Finck, 100 Wis. 446, 76 N. W. 608.

An express agreement having been made between the parties whereby respondents agreed to repay to defendants their respective shares of advancements made and expended in promoting the partnership business, it entitles respondents to recover whatever may be due thereon, regardless of their partnership relation or the state of their firm accounts. Sprout v. Crowley, 30 Wis. 187, and cases cited in opinion; Edwards v. Remington, 51 Wis. 336, 8 N. W. 193.

We find no error in the ruling of the court allowing plaintiffs to amend their complaints, after direction of verdict, to conform to the facts proved.

By the Court. — Judgments affirmed.