Drew v. Ferson

22 Wis. 651 | Wis. | 1868

Cole, J.

It appears tbat tbe suit of Smith v. Drew and Ferson was upon a claim against them as partners. Tbis is shown by tbe judgment roll in tbat suit, which was introduced by tbe plaintiff, and also by tbe plaintiff’s own testimony. The subject matter of tbat suit, then, is a part of tbe unsettled matters of tbe partnership. It is claimed tbat tbe whole partnership business has been adjusted and closed, tbe Smith claim only excepted. We do not see any evidence in tbe case tbat tbe partnership affairs have been settled. The two exhibits offered in evidence do not show this. "Whether the plaintiff can claim compensation for personal services rendered in the- defense of the Smith suit, when the partnership affairs are settled, is a question we need not consider. It is quite obvious that it was as much his duty to look after that suit as it was that of the other partner. And it is a general rule, that a partner is not entitled to compensation for his personal services in the business of the partnership. It appears to us that the plaintiff has mistaken his remedy. He should have commenced his suit in equity for a final settlement of the partnership matters. The non-suit should have been granted; for it was clear, upon the evidence introduced by the plaintiff, that an action at law could not be maintained.

By the Court. — The judgment of the circuit court is reversed, and a new trial awarded.