Frame v. Attermeier

147 Wis. 485 | Wis. | 1911

Viuje, J.

The court properly received evidence of the negotiations leading up to the making of the written agreement for the purpose of showing the consideration paid by the defendant Attermeier for the assignment to him of the notes. The assignment recited that it was made in consideration of “one dollar and other good and valuable considerations.” It was therefore competent to show by parol what the other good and valuable considerations were. Such evidence did not tend to vary or contradict the written instrument, but only to explain it. Klueter v. Jos. Schlitz B. Co. 143 Wis. 347, 128 N. W. 43.

The finding of the trial court that Attermeier agreed, as a part consideration of the assignment, to repay any amount in excess of five per cent, received from the bankrupt estate of William Gerlach & Company, is amply sustained by the evidence. The witness A. J. Frame testified specifically that such an agreement was made, and Attermeier himself, in an examination under sec. 4096, Stats. (Supp. 1906: Laws of 1901, ch. 244), in a former suit, stated that “these notes have been proven as a claim against the estate of Frederick E. Coes, as surviving partner of William Cerlach & Company, in bankruptcy in the district court of the United States for the Eastern district of Wisconsin, and any amount that is secured by way of dividends in the bankruptcy court upon these notes over and above the amount of $787.22, the amount paid by me, is to be returned and paid over to R. Weaver, that is the Weaver who executed the assignment to me.” The compromise agreement entered into between plaintiffs and Atter-meier as to the disposition tp be made of the dividend received from tbe estate of George W. Goes, deceased, as well as tbe contract of guaranty executed by tbe defendant LaBoule, support tbe finding tbat AMermeier agreed to repay any amount in excess of five per cent. Indeed, there is no testimony in tbe case tbat would support a contrary finding.

Ered E. Goes, tbe sole surviving partner of tbe firm, was adjudged a bankrupt, not because of individual debts, but solely on tbe ground of bis liability for partnership debts. No individual debts were filed against bis estate, but only tbe debts of tbe firm were filed and allowed therein, and six per cent, of tbe final dividend of nine per cent, paid tbe creditors of tbe firm was derived from tbe assets of tbe individual estate of Mr. Goes. We quite agree with counsel for defendants in saying tbat tbe question of whether or not plaintiffs are entitled to this dividend of six per cent, is tbe only question tbat should be in tbe case. It appears tbat tbe trustee of tbe firm estate was also tbe trustee of tbe estate of Ered E. Goes, and tbat tbe referee in bankruptcy in tbe firm estate ordered a dividend of six per cent, to be paid on partnership claims out of tbe assets derived from tbe estate of Ered E. Goes and a dividend of three per cent, out of tbe assets derived from tbe estate of William Gerlacb & Company. Defendants claim tbat inasmuch as tbe assets of tbe estate of Ered E. Goes were not formally transferred to tbe assets of tbe firm estate, plaintiffs are not entitled to tbe six per cent, dividend.

Sec. 5 f of tbe Bankruptcy Act of 1898 (30 U. S. Stats, at Large, 548, cb. 541) provides tbat “tbe net proceeds of tbe partnership property shall be appropriated to tbe payment of the' partnership debts, and tbe net proceeds of tbe individual estate of each partner to tbe payment of bis individual debts. Should any surplus remain of tbe property of any partner after paying bis individual debts, such surplus shall be added to tbe partnership assets and be applied to tbe payment of tbe partnership debts.” 2 Kemington, Bankruptcy, p. 1760. Since Ered E. Goes bad no individual creditors, his whole estate became by operation of law subject to the partnership debts. Dickas v. Barnes, 140 Fed. 849, 5 L. R. A. n. s. 654. The mere fact that the referee in his order specified the sources whence the dividend of nine per cent, was derived rendered it none the less a dividend paid out of the marshaled assets of the partnership estate. It has uniformly been held that partnership creditors cannot recover directly from the individual members of the partnership, but must do so by filing their claim against the firm and thus receive whatever surplus there may be from the individual members by its addition to the partnership assets. In re Henderson, 142 Fed. 588; Euclid Nat. Bank v. Union T. & D. Co. 149 Fed. 975; In re McCoy, 150 Fed. 106, 108. Attermeier therefore could not receive anything on his debt against the partnership directly from the estate of the individual partner, Ered E. Goes. The only way in which he could share in the surplus of the Ered E. Goes estate was by its transfer, actual or constructive, to the partnership estate. A constructive transfer by operation of law must be held to have been made in order to entitle Attermeier to receive a dividend derived from the individual estate of Ered E. Goes. The only way he could lawfully receive it was through the partnership estate. He did receive it, and no claim is made that it was not lawfully received. Hence the dividend of nine per cent, must be regarded as paid out of the partnership estate; and if so, it follows that plaintiffs were entitled to the whole thereof.

By the Court. — Judgment affirmed.