58 Wis. 638 | Wis. | 1883
This suit was brought before a justice, and the complaint consisted of an account regularly made out as a “ bill rendered ” for threshing oats, barley, and wheat for the defendant, together with the averments that the plaintiffs were partners and that the defendant was indebted to them in the amount of the bill and interest, and a prayer for judgment. On the trial the defendant objected to any evidence under the complaint because it stated no cause of action. We think that it was a praiseworthy model of a complaint before a justice of the peace. It informed the defendant specifically of the demand, and with commendable brevity. It is not perceived how anything else of substance could have been stated.
The plaintiffs and defendant were clearly tenants in common of the machine, but if they were copartners it would make no difference. Such a contract between copartners would unquestionably be valid. Why. not? They severed for the purpose of this contract their interest in the property, which for a time was to be used for the exclusive benefit of the defendant, who was the owner of only one third, by an agreement to pay to the plaintiff the value of two thirds of its use, to which they were entitled. This question resolves itself into the question whether tenants in common, or copartners, could make such a contract. If they can, then the law will enforce it. There is really no question of partnership, or tenancy in common, in the case, the only
In Garret v. Taylor, 1 Esp. Digest, N. P., 117, Lord MaNs-Kield said that, “ where there had been a severance as above stated, one alone might sue.” In 1 Parsons on Con., 161, it is said: “ But it is clear that a partner may sue a copartner on an express agreement, and perhaps on an implied agreement, to do any act not involving the partnership accounts.” But, better than any other authority, this court has decided this precise question in Sprout v. Crowley, 30 Wis., 187. Without stating the facts of that case, it is sufficient to quote the principle as stated by Mr. Justice.LyoN in his opinion: “But where there is an express agreement by one partner to repay to the other his share of the advances made by the latter on account of the partnership business, the amount of such share becomes thereby the debt of the partner who has thus agreed to pay the same, which may be recovered in an action brought directly therefor, without any regard to the partnership relation existing between the parties or the state of their firm accounts.”
There is no material error apparent in the record’, and the verdict was unquestionably correct, in view of the evidence.
By the Court.— The judgment of the circuit court is affirmed.