Gauger v. Pautz

| Wis. | Aug 15, 1878

Lyoh, J.

I. It is claimed that the complaint fails to state a cause of action. In Sprout v. Crowley, 30 Wis., 187" court="Wis." date_filed="1872-06-15" href="https://app.midpage.ai/document/sprout-v-crowley-6600924?utm_source=webapp" opinion_id="6600924">30 Wis., 187, this court held that “ where there is an express agreement by one partner to repay to the other his share of advances made by the latter on account of the partnership business, the amount of such share becomes thereby the debt of the partner who has thus agreed to pay the same, which may be recovered in an action brought directly therefor, without any regard to the partnership relation between the parties or the state of their firm accounts.” (p. 192.) This complaint alleges an express agreement by the defendant to pay the plaintiff one-half of his advances on account of the partnership business, to wit, the Greves suit; and hence, it states a cause of action within the rule of Sprout v. Crowley.

II. Within the same rule, the instructions prayed on behalf of the defendant were properly refused. They are, 1. That unless there was a final settlement of all partnership matters before this action was commenced, the action could not be maintained; and, 2. That, unless the partnership was fully and fairly terminated and settled, and unless the defendant promised to pay the plaintiff’s claim, before suit brought, the action could not be maintained.

These instructions are based upon the assumption that one partner cannot maintain an action at law against his copartner in respect to any matter of partnership concern, until there has been a dissolution of the partnership and a full settlement and adjustment of all the partnership affairs. This proposition was expressly rejected in Sprout v. Crowley. Moreover, it satisfactorily appears from, the pleadings and the uncontra-dicted testimony, that, at the time the alleged agreement was made upon which this action is founded, there had been a dissolution of the partnership and a complete adjustment by the parties of all their partnership business and accounts, with the single exception that the amount which the plaintiff might thereafter be required to pay on account of the Greves suit (then pending) was not, and could' not have been, ascertained.

III. The only question of fact-really contested on the trial was, whether the defendant agreed to pay the plaintiff the money claimed in this action; and that question is narrowed down to what occurred between the parties in the register’s office when they concluded their settlement. This question was submitted to the jury as the controlling one in the case. They were instructed that, finding the agreement, their verdict should be for the plaintiff; but failing to find the agreement, the plaintiff could not recover. The instruction was correct, if there was any evidence tending to prove the agreement. But the learned counsel for the defendant contends that there is no such evidence in the case. We are of the opinion, however, that the testimony of the plaintiff tends to prove the agreement, and was sufficient to send the question to the jury. The following is his testimony:

“ Q. You may go on and state the agreement between you and Mr. Pautz, down in the register’s office, in regard to paying this Greyes suit.

“ A. "Well, he came to me and says, ‘Before you leave, it is just as well to deed half of the lots over to me.’ I told him they couldn’t divide it very well, because two of them were worth a great deal more, towards the road, than the other. He says, ‘ Then we can put so much more money on that, and then draw; which two you ever get, you have. We equal them up, putting that one higher and that one lower; then we can deed them over.’ I should give him a deed. ‘Well,’ says I, ‘ this is all right enough, hut you know that suit is not settled yet.’ He says, ‘Ain’t I man enough for that suit? ’ I says, ‘I know you are; you always was. We never had any quarrel with you, but then you don’t know what circumstances come on, and it may save trouble.’ Then Mr. Bach stepped up, and he says, ‘That is all right; Mr. Pautz is good enough for that amount.’ ‘I know he is,’says I. Mr. Bach says, ‘You are both brothers-in-law and have got along so far; what you want a writing done for?’ Says I, ‘If you all say so, I will give him the deed,’ and I gave him a deed, and went off, and that left the thing so standing, and that was all that was said.”

True, the plaintiff does not testify that the defendant then promised in express terms to pay the money, but his version of the transactions and conversation between them in the register’s office raises a presumption that he understood and accepted what the defendant then and there said as a promise that he would repay the plaintiff one-half of his disbursements on, account of the Greves suit, and that the plaintiff delivered the deed of the lots on the faith of such assurance. It is also a fair inference from the testimony, that the defendant knew that the plaintiff accepted what he there said as a promise to pay the money, and delivered the deed on the faith of it.

IT. After what has been said, it is hardly necessary to say that there was a sufficient consideration for the alleged agreement, and that the same is not within the provisions of the statute of frauds which declare that certain agreements shall be void unless in writing.

IJpon the whole case, we think the judgment of the circuit court should be affirmed.

By the Court. — Judgment affirmed.