Fick v. Mulholland

| Wis. | Feb 3, 1880

Lyoet, J.

The pleadings presented the following questions .of fact for determination: First. Was the property in controversy, when seized, the sole property of the plaintiff, or was it the property of the firm consisting of the plaintiff and Maiboom? Second. Did the plaintiff demand the property as being exempt from seizure and sale under the attachment and execution? Third. What was the value of the property? The second question alone was submitted to the jury. By the rule asserted in Hutchinson v. Railway Co., 41 Wis., 541" court="Wis." date_filed="1877-01-15" href="https://app.midpage.ai/document/hutchinson-v-chicago--northwestern-railway-co-6602245?utm_source=webapp" opinion_id="6602245">41 Wis., 541, and repeatedly applied since, the failure to submit the other questions of fact to the jury, is not error unless the testimony bearing upon them is conflicting.

After careful examination of the testimony, we are unable to say that there is any conflict of proof. It satisfactorily appears that the plaintiff and Maiboom were partners in the brewing business before the property was seized, but that the copartnership was dissolved by mutual consent, and the property of the firm transferred to the plaintiff, a few days before the seizure, the plaintiff undertaking to pay the debts of the firm. One Blouquelle, a witness called by the defendant, testifies that he was present when the partners settled their matters, and gives the various items of account adjusted between them. His testimony is, that the price of the beer and hops in controversy was then agreed upon, and the amount charged to plaintiff in the settlement; that plaintiff agreed to pay certain debts of the firm, including that for which the attachment suit was brought; and that Maiboom thereupon went off, and had nothing more to do with the plaintiff after that time.

• The defendant testified that he seized and sold the property on the faith of an assurance by Maiboom that there was no dissolution of the partnership until plaintiff should pay the debts of the firm. ’ The plaintiff is not bound by the statements of Maiboom adverse to his interest, and made in his absence. The testimony is not within the rule that the admission of a partner in a matter of partnership concernís evidence against the firm; for here the existence of the alleged firm is denied, and the testimony was given for the purpose of proving the copartnership. The testimony of Maiboom’s statements was not competent, and cannot be regarded as tending to prove the copartnership. Indeed, earlier in the trial the same testimony was offered, and the court very properly rejected it.

Blouquelle was the only witness who testified as to the terms of the settlement between the plaintiff and Maiboom; and we think his testimony* proves conclusively that the copartnership was dissolved, and the whole title to the property in controversy vested in the plaintiff before the seizure; and that the property was unaffected by any trust which deprived him of an exemption right therein.

According to these views, the instructions asked relating to the question of partnership were properly refused, and there was no occasion to submit the question to the jury.

As regards the value of the property, the plaintiff testified that the beer was worth five dollars per barrel and the hops eight cents per pound, when seized. Other witnesses testified that the beer was worth but three dollars per barrel when sold, and the evidence tended to show that it deteriorated in value after seizure. The value when seized rests upon the testimony of the plaintiff alone, w'hich is uncontradicted. There was, therefore, nothing to submit to the jury on the question of value. A computation will show that the value for which judgment wras given was less than that placed upon it by the plaintiff.

We think it was not error for the court to send the jury back to make their finding more specific. This is very common practice. The court was not satisfied with the answer to the second question, and required the jury to* find whether the only reason plaintiff gave for demanding the property was that it was his property, and, if he gave any other reason, to find it. That is to say, the court regarded the finding as uncertain, and required the jury to make it certain. This the court may properly do.

The remark of a juror that they could find no other reason for the demand, is not significant. He could only speak for himself, and the fact that the jury found the plaintiff gave another reason therefor, proves merely that the juror changed his opinion. Besides, the verdict, as finally rendered, is abundantly sustained by the evidence.. It also shows that the plaintiff substantially claimed the property as exempt.

Errors are assigned on the rulings of the court rejecting offered testimony. The more material of these rulings, if erroneous, were corrected by the subsequent admission of the rejected testimony. The others we regard unimportant.

We think the record discloses no error for which the judgment should be disturbed.

By the Gowrt. —Judgment affirmed.