147 N.W. 993 | Wis. | 1914
The appellant claims that the judgment should be reversed because (1) the judgment in the case of Will of Rice,
1. The claim that the decision in the Rice Will Case is resadjudicata as to the rights of the firm as between themselves is plainly untenable. No issue of this kind was raised or tried in that case, and when it is claimed that the judgment in one case determines the rights of the parties in another case upon a different cause of action it must appear that the questions were actually litigated and decided in the former case. Rowell v. Smith,
2. The principle that there can be no contribution between wrongdoers is very familiar and is frequently applied. As between partners however, the rule is subject to this important modification, viz.: that a claim for contribution will not be rejected unless the partnership is an illegal partnership or unless the act relied on as the basis of the claim was not only illegal, but the illegality such that it must or ought to have been known to the partner seeking contribution to havebeen illegal when it was committed. 1 Lindley, Partn. (2d *579 Am. ed.) 378; Story, Partn. (7th ed.) § 220; Shumaker, Partn. pp. 249, 250.
In the present case, although this court held the settlement contract invalid because the terms of a will could not thus be set aside, it did not hold that the firm of Ryan, Merton Newbury were conscious wrongdoers. They were acting honestly and in good faith, but under a mistaken conception of the law, and hence the right of contribution exists.
3. The proof of settlement of the partnership affairs was scanty but sufficient. Mr. Merton was allowed (against objection for incompetency) to answer the direct question whether a settlement of the partnership affairs had been made It is said that he was not competent to answer the question because his answer involved a personal transaction with a deceased person. This does not necessarily follow. It appears by other testimony in the case that Mr. Newbury was the bookkeeper and cashier of the firm; that he paid the bills and distributed the moneys received between the partners apparently with frequency. Evidently the partners intrusted the financial matters of the firm to his management implicitly and received their shares from him as the business went along. There may easily have been settlements from time to time resulting simply from the acceptance by the partners without question of reports or statements submitted to them by Mr. Newbury. If it was desired to preserve the objection, counsel should have applied for leave to ask the witness whether the settlement was made personally with Mr. Ryan.
4. It is true that sec. 3844, Stats., provides that every claim against an estate not presented for allowance within the time fixed by the order limiting the time for the presentation of claims shall be barred, but sec. 3860 also provides that if a claim shall accrue or become absolute at any time after the expiration of the limited time it may be presented and proved at any time within one year after it accrues or *580 becomes absolute. Mr. Merton's claim plainly comes within this class. He had no claim until he had paid the judgment in the Rice Will Case, and this was long after the expiration of the time limited.
By the Court. — Judgment affirmed.
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