40 Wis. 549 | Wis. | 1876
Lead Opinion
It was settled by tbis court in its decision on one of tbe former appeals (38 Wis., 114), that tbe complaint states a cause of action in favor of the plaintiffs and against tbe defendant for tbe moneys paid by tbe former on account of tbe judgment recovered by tbe defendant in tbe Milwaukee county court in 1862, against Aldricb, Smith & Co. Hence, bad all of tbe material averments of tbe complaint been proved as made, there could be no doubt of tbe plaintiffs’ right to the judgment which they recovered in tbis action.
Tbe only question to be determined is, therefore, 'whether tbe variance between tbe bonds described in tbe complaint and those read in evidence is fatal to such right of recovery under tbe present pleadings. It is believed that tbe determination of this question will dispose of all tbe exceptions in tbe case and all tbe errors assigned by tbe appellant.
Tbe bonds do not seem to have been executed individually by but one of tbe firm of Mann Brothers, but only in tbe name of tbe firm. Whatever objection might have been made by tbe partners not executing tbe bonds in their individual capacity, to tbe form of execution, in case tbe action were against them on the bonds, there is no doubt of tbe right of the firm in whose name and for whose benefit they were executed, to treat "them as valid and binding obligations against it. And tbe firm did so by paying tbe judgment recovered against Aldricb, Smith & Co. in tbe Milwaukee county court. Moreover, tbe firm having received tbe consideration for which tbe bonds were given, will not be beard to deny their validity. Eor these reasons, we think the objection to tbe validity of tbe bonds because of tbe fact that each member of tbe firm did not execute them individually, is not available to tbe defendant.
Each member of a firm is liable for all of the debts of such firm; and the bonds read in evidence, although not executed to all of the members of the firm of Aldrich, Smith & Go., bound or_ authorized Mann Brothers to pay the Milwaukee judgment, just as effectually as though the firm, or all of its members, were named as obligees.
Ve conclude, therefore, that the alleged variances could not possibly prejudice the defendant, and do not in any manner affect the plaintiff’s right to recover in this action, and hence, that they are entirely immaterial and were properly disregarded by the county court. Moreover, if the covenant of the plaintiffs is merely to save Aldrich, Smith & Go., or some member of that firm, harmless from the debts and liabilities of the firm, we are not prepared to say that under such a covenant the payment of the Milwaukee judgment by the plaintiffs was a mere voluntary payment.
We reach these conclusions more readily because the record shows that the money paid the defendant on the judgment against Aldrich, Smith & Go., ought in justice and equity to be repaid to the plaintiffs, and that the moral, if not the legal duty to repay it was made apparent by the decision of the supreme court of the United States, made as early as 1869.
By the Cowt. — Judgment affirmed.
Rehearing
The argument of the learned counsel for the appellant in support of the motion for a reargument is able and earnest. We have carefully considered it, but it fails to convince us that we ought to grant the motion. The position that the payment of the Milwaukee judgment by Mann Brothers was a mere voluntary payment, and hence that they coüld not recover back the money so paid, was fairly presented by the former appeals (38 Wis., 107, 114), and ruled adversely to the appellant. Such ruling is res adjudicata in the case.
Further deliberation has confirmed us in the opinion that the variances between the bonds described in the complaint and those read in evidence on the trial, are quite immaterial. It is believed that none of the cases cited in the former or present argument hold otherwise. The cases are to the effect that in an action on a contract, the contract must be proved as alleged. The distinction between those cases and this case was pointed out in the former opinion.
In the last decision of this case, it was not held that the payment of the Milwaukee judgment by Mann Brothers would not have been a mere voluntary payment, even though the only conditions of the bonds were to save harmless members of the firm of Aldrich, Smith & Co. from the debts or liabilities of that firm. It was only said in the opinion that we were not prepared to hold the contrary doctrine. We did not then, and do not now, deem it necessary to decide the ques
“The condition of the above obligation is such, that if the above bounden Joseph Mcmn, Henry Mctnn and Hermann Mann, or either of them, their or either of their heirs, executors or administrators, shall well and truly pay, cancel and discharge, or cause to be paid, cancelled and discharged, within a reasonable time after the date hereof, all the indebtedness and liabilities of every name and kind or description whatsoever, and remaining unpaid at the date hereof, due or to become due, of and against 'William Aldrich, James E. Aldrich, Hezekiah IT. Smith, Martin B. Medbury and John IT. Med-bury, some or all of them, as late copartners in trade at the village of Two Bivers, state of Wisconsin, under and in the firm name and style of Aldrich, Smith & Co., * * the above obligation to be void.”
It is quite true that the above condition is followed by others “ to keep and save harmless ” only, but these were evidently inserted ex abundanti cautela, and do not operate to restrict or limit the effect of the former condition.
By the Oowt. — Motion denied.
