Ehrlich v. Brucker

121 Wis. 495 | Wis. | 1904

Cassoday, O. J.

1. Tbe important question presented is whether tbe finding of tbe trial court that no partnership ever existed between tbe plaintiff and tbe defendant is sustained by tbe evidence. There is no pretense that there was ever any written agreement or articles of copartnership. Tbe plaintiff’s claim is that she entered into an oral agreement with tbe defendant wherein and whereby they agreed to run and operate a general department store at tbe city of Fond du Lac. In her verified complaint she alleges that such agreement was made April 8, 1899. In her testimony she swears that “tbe partnership was formed about tbe last part of November, 1898,” at her bouse in tbe city; that they opened tbe store April 8, 1899, and that she was sent away January 6, 1900. There is considerable testimony tending to corroborate the plaintiff as to tbe existence of such copartnership. It consists largely in admissions or statements of tbe defendant to tbe effect that tbe plaintiff was interested in tbe business, or was bis partner. Tbe defendant flatly denied that be was ever in partnership with tbe plaintiff. Tbe circumstances were peculiar. It appears, and is undisputed, that prior to December 1, 1898, tbe plaintiff and her husband conducted a mercantile business in the store building in question in the name of B. Ehrlich — the plaintiff’s father-in-law — who at the time resided in Chicago. That building was owned by the defendant’s wife. B. Ehrlich failed in that business in November, 1898, and December 1, 1898, tbe defendant was appointed temporary receiver of tbe property. Tbe defendant bad bad no experience in mercantile business. He bad •some years before been a farmer and lived in tbe country ■and upon being elected sheriff bad moved into tbe city, where 'be continued to reside. Tbe result was that be employed tbe plaintiff and her husband to assist in closing out tbe business, and for that purpose tbe store building was occupied until April 1, 1899, when it was closed up. Tbe fact of that building being vacant and tbe defendant having seven grownup children, tbe oldest of which was twenty-nine years of age, and the offer of tbe plaintiff and her husband to work for him very cheaply, and buy goods for him, and teach and educate him and bis children in tbe business, induced him, .according to bis testimony, to go into tbe business in bis own name. There is much testimony tending to corroborate tbe statement of tbe defendant that be was never in partnership with tbe plaintiff. Certainly we cannot bold that tbe finding that tbe plaintiff and defendant were never in partnership is •against tbe clear preponderance of tbe evidence.

2. Of the $1,850 worth of goods which tbe plaintiff claims to have furnished and put into tbe business, she testified that $1,075 in value thereof were purchased by her of one Frank in Chicago at a discount of nearly $200 by reason of their being in broken lots and broken boxes. Tbe trial court found that said last-mentioned goods were shipped from Chicago to tbe defendant’s store in May or-June, 1899, and that tbe ■defendant, in tbe plaintiff’s presence, and with her full knowledge and approval, purchased those goods from tbe •plaintiff’s husband, as tbe owner thereof, and promised to •pay him therefor; and that tbe plaintiff did not put such .goods into tbe store as partner or otherwise; and that she had no lawful claim or demand against tbe defendant on account thereof and that tbe plaintiff never owned' said goods. Tbe defendant testified to tbe effect that be understood that tbe goods bad been bought by the plaintiff’s father-in-law in Chicago, who had opportunities for buying up goods for fifty* or sixty cents on the dollar, in pursuance of a conversation-which the defendant had with the old gentleman in March previous; and that the defendant agreed to pay the plaintiffs-htisband for the goods so shipped from Chicago, according to-the invoice which should be made out — being about eight or nine hundred dollars. There is considerable testimony tending to corroborate the defendant’s version of the transaction. There is some evidence tending to prove that some of the goods so shipped from Chicago were part of the goods-which formerly belonged to the plaintiff’s father-in-law. Certainly, we cannot hold that the finding of the trial court as to those goods so shipped from Chicago is against the clear preponderance of the evidence.

3. Since there never was any partnership between the-plaintiff and the defendant, it is obvious that the findings of the trial court and the referee as to the “household goods,”' so called, were in favor of the plaintiff. As indicated, the-defendant was charged with the full amount of those goods, except such as the plaintiff received or had the benefit of; and, in addition, the defendant was credited with the $171 which the court found the defendant paid to the plaintiff after she left the store January 6, 1900, leaving the balance against the defendant as found by the referee and adjudged by the court.

4. Counsel for the plaintiff claims that the evidence did not warrant this credit of $171. But just before the testimony was closed the plaintiff was recalled, and testified to the effect that after she left the store the defendant made-four cash payments, amounting in the aggregate to $171. So that finding is supported by the evidence. Prior to that time the plaintiff had testified to the effect that after she left the store she had her husband get from the defendant $500 about February 1, 1900, and $500 more about March 1, 1900. These two items make the $1,000 which the court found to be a repayment, of tbe $1,000 which, the plaintiff had previously loaned to the defendant. So there is no dispute as to such payments.

5. The court and referee also found that neither at tibe time of making such loan nor at any other time was there any agreement or understanding that the defendant would pay any interest thereon to the plaintiff. There is no evidence of any demand that such repayment should he made prior to the time it was actually made. There was no error in holding that the defendant was not liable for the payment of interest on such loan. Laycock v. Parker, 103 Wis. 161, 187, 188, 79 N. W. 327.

By the Court. — The judgment of the circuit court is affirmed.