131 Wis. 518 | Wis. | 1907
Tbe essential facts alleged in tbe complaint are that tbe plaintiff advanced to bis firm, for tbe purpose of making cash purchases of goods, money which bis partner T. E. Eraney secretly and without plaintiff’s consent used to pay debts of tbe former firm composed of T. E. and John Franey, and that T. E. Eraney has no property out of which plaintiff can collect bis claim. These are tbe facts from which tbe plaintiff’s right to subrogation must be found to exist, if it exist at all. It is true that it is alleged with much particularity that John Franey contracted in writing with the plaintiff to pay and discharge the debts of the old firm at the time plaintiff purchased John Franey’s interest and was received into the firm; but no liability is now claimed as a result of that agreement, and, indeed, this court has already decided in a former action between the plaintiff and John Franey that there could be no recovery on the agreement in the absence of allegations showing that the plaintiff was in some way legally compelled to pay the debts of the old firm. Reddington v. Franey, 124 Wis. 590, 102 N. W. 1065. It will be noticed that no statement is made as to the present pecuniary condition of the new firm or the amount of its property; and we are entirely uninformed as to whether it is still doing business or has been dissolved, whether the partners' have settled their mutual accounts or not, whether the plaintiff owes the firm or the defendant T. E. Eraney owes the firm, or whether both owe the firm, or what will be the condition of the mutual accounts when the business is settled and a'balance struck. The significance of these omissions will appear later in this opinion.
Here we meet difficulties arising from the lack of any allegation as to tbe relations and rights of tbe partners in either firm as between themselves. T. E. Eraney was a partner in both firms and prima facie liable for tbe debts of both firms. There is no allegation tbat John Franey ever agreed with T. E. Etaney to assume or pay tbe debts of the old firm, nor is there any showing of tbe condition of tbe accounts of tbat firm as between tbe partners. Eor all tbat appears T. E. Eraney may have been equitably bound, as between himself and John, to discharge those debts, or be may have agreed to do so at tbe time of tbe sale of John’s interest to tbe plaintiff. In either case T. E. Eraney would have no right of subrogation either individually or through tfm medium of tbe new firm. But this fact would not, of course, affect tbe right of tbe plaintiff to have bis equities worked out through tbe firm. Here, however, we meet another difficulty. Tbe plaintiff’s advance of money to tbe new firm simply made him a creditor of the firm. His copartner may have advanced a greater sum, or tbe plaintiff may have drawn out moneys, or both,
Tbe doctrine of subrogation, by which a debt once paid or a security released is allowed to be revived and enforced in another’s name, is an equitable doctrine, designed to prevent imminent injustice, and is only carried out in tbe exercise of equitable discretion. It has been called a doctrine of mere equity and benevolence. It is invoked for tbe protection of tbe person who, not being a volunteer, has, paid tbe debt. While it will not be denied simply because tbe creditor may bave another possible remedy, it must certainly appear that it is necessary for bis protection. Eor all that appears in tbe present complaint the plaintiff (who is. tbe only one claiming subrogation here) may be now the debtor of tbe new firm, or, if a creditor, be'may bave in bis own bands tbe property of tbe new firm which may be ample to satisfy bis claim. As said in Edinburg Am. L. M. Co. v. Latham, 88 Ind. 88: “We think it clear that such relief [i. e. subrogation] ought not to be granted unless tbe necessity for it be distinctly shown.” The fundamental basis of tbe privilege being tbe necessity
We do not discover that there is any defect of parties, •either plaintiff or defendant; but for the reasons given the demurrer should have been sustained. '
By the Court. — Order reversed, and action remanded with “directions to sustain the demurrer to the complaint.