Rowell v. RowellRowell v. Rowell
*1 CASES DETERMINE!
AT THE Term, January 1904. others, Adminis Respondents, vs. Rowell,
trator, others, Appellants. May 10,
March 23 1904. by Sale administrator Remedies distributees: Find- himself: ings Partnership: Appropriation assets sur- of fact: of firm viving partner: Accounting partner: to heirs deceased Ele- property: ments and value ioill: converted Profits from services, patents, Allowances etc. for Although legal personal property title 1. estate of an administrator, yet protect vests in the if he fails the bene- legal distributees, ficial interest therein of the or himself in- interest, vades that a transfer of the to him- —as fraudulently individually, otherwise, self either or —such may making equity protect rights, distributees sue in their a administrator defendant. If, .case', necessity enforcing legal a 2. there is no right others, of the administrator benefit of creditors or may disregard legal temporary the circuit court the mere title pass money property, directly recovery, to those ulti- mately entitled thereto. Upon property by himself, a sale of 3. an administrator to if there proof any profits therefrom, prop- is no made him ishe erly chargeable only with its reasonable value. finding subject upon referee makes 4. no Where which evi given him, may properly sup dence ply before trial court '’-ding thereon, and the rule as to when the trial court findings application should ..xsturb the of a referee has sue' a case. surviving being partner, also Where administrator prop- partner, estate of deceased has sold and transferred 122—1
Vol. SUPREME COURT OE WISCONSIN. [Mat *2 erty corporation of the firm to himself or to a which he so con- practically himself, trols that the such sale is void- sale to fiduciary, able the choice of those for whom he was whether them, any purpose or not there was defraud conscious to they may profits hold him to account for ’all realized from their share of firm the assets so transferred. In the 6. an action in such ease the children of de- widow and partner, part grantable ceased wherein a consisted the relief corporation, decreeing plaintiffs part to be owners the profits prayed' in exclu- that further distribution of it wаs corporation restrained, sion of them be stockholders in the who surviving partner proper, from received their stock the were recovery, although necessary, specific money parties, if not against them was demanded. case, legal effect, partnership property Since, was, 7. the appropriated corporation, the but nevertheless was not sold to business, it in its it must be deemed to have used was capital, any profits earned are entered into that business as according property, value, its attributed to such the to be' capital corporation of the contributed in same extent as the money. partnership having appropriated good of the been 8. The will corporation, determined and should be should be the its value corporation, capital the of the the treated as a contribution to property taken its business. firm same other existing merely consists of the names of far as a firm name 9. So property prevent individuals, not such in it as to sur- there is оutgoing viving partners, sale the business and after a business, using will, their own n'ames in a similar long not, by they of new firm name or the structure a do so identity convey otherwise, of their with or succession the idea concern; to the business must and the successors old the old to not, agreement, express firm the as to use old name without idea, retiring convey individuals are still con- the with it. nected may implied under a manufacture firm have to license which 10. ground partners, belonging patents to individual employ of the while in to such individuals were issued stranger. partnership firm, can be sold to a asset which is not finding of sustain case is held to in this 11. The evidence which, good will with other of the the value court that trial $35,000. corporation, passed property, partnership to the J., J., Cassoday, C. dissent. Dodge, profits determining of the business share of the' what In 12. go propeidy corporation interested in estate those should inquire' partner, ex- should to what the court deceased TERM, JANUARY Howell, 122 1.Wis.
Howell v. personal profits services of to the tent such are attributable conducting business, allowance accord- and malte an those wrongfully appro- being ingly burden those who —the priated prove clearness reasonable the firm certainty profits part is due to other sources what of the' property. than said measurably profits corporation due Where the firm, belonging patents the old members of to individual use of account, in on that a deduction should be made ascertainin g appropriated profits assets amount of attributable old firm. Appeal court for Winne- of tbe circuit from judgment Circuit Judge. Geo. bago county: BubNell, Modified and affirmed. *3 Rowell, a mechanic and steam engi- 8.
About 1855 John farm and some other seeders commenced neer, manufacturing and Dam, Wisconsin, at Beaver in a small implements way down continued series throughout partnerships contain- in this each partnership times involved controversy; A his and sometimes that of partner. his name, own ing commenced the ancestor Rowell, plaintiffs, Ira nephew, he to when continued up association early his himself with associated, 8. Rowell and John withdrew, Rowell, and one Mer- B. Theodore sons, two Samuel out Ira Rowell 1875j again bought In ritt August, Greene. interest, one Greene, wit, quarter interest of Rowell, his said 8. consisted of the firm thenceforward Rowell Sons & name of J. S. the firm Ira, under sons, Ira Rowell the death of continued up That business Co. he had the last few years 1886, except during in July, sal- draw attention it much personal -ceased give firm drawing three members of the other therefrom, ary firm various each; Rising improve- $1,200 (cid:127)a salary invented and had been patented machines which ments upon do, so to Rowell, of their right question without any J. by hav- him; improvements royalty (cid:127)or of the payment him a salaried member of the -while invented by been ing SUPREME COURT OF WISCONSIN. [May y. Bowell, 122 Bowell Wis. 1. and.
firm, the use of materials and by its workmen. The busi- ness' was conducted real estate in Dam Beaver owned in common ohn J 8. and Ira by Rowell—three fourths by former and one fourth the latter. by the death of Ira
Upon
ad-
Rowell, John 8. was appointed
ministrator of his estate, and,
mutual consent between
himself and the widow of Ira, continuеd the
same
In 1888, about
way.
October
or under-
1st, learning
that the widow Ira
standing
Rowell desired that his in-
terest be withdrawn from the
business and set
partnership
to her and his
he
apart
children,
undertook to accomplish
this result
at a
selling
tangible assets,
fixed by
price
selected
in such
appraisers
him,
he
his two
way
sons could
on with the business without the
go
interest of Ira
estate
Rowell’s
therein. To
accomplish this,
the sugges-
tion of
of his
one
articles of
bookkeepers,
incorporation
8.,
W.,
filed,
J ohn
Samuel
signed by
Theodore B. Bow-
ell, under the name of the
J.
Bowell
Gom-
Manufacturing
with an authorized
;pany,
lie
capital
$100,000.
caused
an
to be made of the manufacturer’s
inventory
stock and
completed
completed
partially
implements
hand,
taken at
which,
cost, amounted to $15,477.07, and all the
and tools,
machinery
$5,355, which total
amounting
he
assets, $20,832.01,
transferred to the new
mentally
con-
*4
cern for that sum; no
then
conveyance
made,
the
being
amount
as a
credited
debt from the
being
new concern
old
and
firm,
afterwards
with interest. As a
paid,
part
of the same
J.
8. Bowell
as
plan,
put
capital, money,
and
$40,000, on
within a few months after October 1, 1888,
at such
as to
dates
make its
value on October
present
1, 1888,
$39,156.07. The credit assets of the
firm,
old
of
consisting
indebtedness and of what were
money
called “commission
for
accounts,”
machines which had been
and were
to,
shipped
in the hands of,
were set
an
hands of
em-
agents,
apart
for collection and division of net
ployee
after
proceeds
pay-
TERM,
JANUARY
Kowell,
Kowell v. was duly wbicb tbe old purpose the debts of partnership, ing thereof being of the net out; carried one proceeds quarter to that as administrator. As liquida- 8. Rowell J. paid no arises. tion question as cap 8. Roivell $40,000 by
Upon payment of the $40,000 capital he treated himself as entitled ital, further As to the organization, stock of new corporation. for several no written subscrip were taken years; steps issued. and no certificates made, tion to stock being being with due He, however, purpose, mentally, expression his the interest thus to each of acquired one gave quarter each of two children of a deceased two and one sons, eighth and M. Barter. the defendants Bert 8. Belle daughter; being all affairs made in of the business; No break was the doing conducted, in same where all before, office were being and in the of the old same books, etc., records, company, with the use of the same plant, machinery, buildings, powers, time used the old firm. At the same which had been etc., the new con to lease to John 8. mentally proposed confirmed cern real which mental act was some estate, him of a lease and as later making personally years Ira and as of the minor children of administrator, guardian a rental of not, which he was $1,000 Rowell, year, share of which he has himself admin the estate’s charged istrator. Said lease included the “rights, appurtenances, . . . water privileges pertaining plant, rights included, patterns privileges patents belong and used in and about business of said ing plant At the time manufacturing comрany.” making there was executed a lease, too, bill sale confirming the transfer of the which had inven been personal property toried. These of a trans however, papers confirmatory, action had in 1892, at which time more formal September, complete organization had, corporation in connection therewith certificates of stock were issued *5 OF WISCONSIN. SUPREME COURT [May Bowell, 122
Bowell v. tbe and in original $40,000 propor- capital, persons tions in accord witb Mr. as above- Bowell’3 original plan, and a stated, remaining stock so for tlie dividend, called, $60,000 of authorized stock was issued in the same propor- tions and at ; that time the defendants and Gangelhoff' Stacy came into the cash Bowell for cer- to J. 8. corporation, paid tain amounts of and continued as offi- stock, thenceforward cers and employees.
The business continued of tho to the time organized Barber, commencement of this the defendant suit, 'Lyman the father of the two therein grandchildren, being employed as the of his two children. Dur- standing representative all of the times and his two ing mentioned, John S. Bowell sons devoted themselves to the business, for un- had doubtedly both as superior qualifications, managers as skilled with inventive mechanics, to meet the ne- ability cessity modifications of the machines improvements constructed, so as to meet the of other manufact- competition urers. A list of long patents shown improvements findings, before and after the death of dating both Ira Rowell. Salaries were from 1886 to 1888 to paid each of them at the rate of $1,200 On per year. December those salaries were increased to $2,400 per year, on December 1, $3,000. was allowed and Stacy paid $1,500 per year December, 1894, to 1900, and July, B. S. Barber $1,800 after the last-named date. There was’ also that proof inventions many patents sev- eral Bowells were used in the business, were of very considerable value in results, and, as to attaining especially certain for inventions patents antedating October, 1888, the use of each of them was worth at least for еach $1 ma-< chine the invention. At the time of embodying the trial it was found that the business had been very profitable, after that, indebtedness and deducting the liability and the dividends plaintiffs, ascertained, considerable *6 1904. TEEM, JANUAKY Y Eowell, 122 1.Wis.
Eowell v. the assets stockholders, wbicb bad to tbe been paid amount of the out- twice the were worth corporation nearly stock, $100,000. standing capital & other assets of the firm of J. S. Eowell Sons
Amongst the one-quar- Co. were six in'which horses, pedigreed trotting court ter Ira inventoried to the county interest of Eowell was as $212.50. The administrator treated these horses them, had been before Ira Eowell’s death, racing training $1,800. of 1889, incurred April, some thereby expense by to sell He court for then applied county authority to himself at the inventoried price, interest them quarter which had meanwhile he all of the assuming racing expenses inventory his incurred; been representing by petition finds horses. The referee was the full and fair value of the inventory time of the the horses were worth at the tends to The evidence 1889, $4,200. $3,200, April, these of at least disclose full ohn 8. Rowell J knowledge by him cus- and continual insistence to prospective values, held to account valuation. He was tomers on much higher value. $3,200 for them at a final ac- in 1896 8. Rowell
Some time John presented and dis- amounts received court, count to the county showing himself with the one-fourth of bill bursed, charging Rowell of the assets turned over to the 8. sale J. of price This settled substan- account was Company. Manufacturing however, entered, which, and a final order stated, as tially of the parties, by stipulation plaintiffs petition Martin Meanwhile' F. aside in 1898. George was set May, and had of the minors, had been general guardian appointed their articles of payment upon certain accepted notes and stock of certain estate, including share of the mill cotton corporation. local Ira are the widow children
The who plaintiffs, dis- have learned of the not attempted to. Eowell, claiming until some interest of the estate’s partnership posal ' WISCONSIN. SUPREME COURT OE [Mat Rowell, 122 Wis. December time in commenced this suit- аcts various with the administrator charging purpose and, trustee, with proportionate mismanagement, manufacturing realized share the profits assets of the old from the use therein partnership. Martin, as colluding defendants, other except joined said the acts of misappropriation *7 thereof. and in the the proceeds assets enjoyment Martin, as was such, the had who, resigned way, guardian, by to the administrator to tender back be compelled sought ad- mill to the end that the by him, the cotton stock received instead thereof. money ministrator might required pay a The action was referred to whose referee, findings the confirmed the trial that court, all respects by except a of the horses added thereto latter finding purchase fraud. administrator characterized actual was by by the facts above stated, Those present substantially findings and, not of statement here, other details many necessary as the court- 8. Rowell liable conclusion, adjudged realized out of the use of the interest account the profits in the former of Ira Rowell’s estate partnership property, same as to the busi- contributed treating capital originally ness Manufacturing 8. Rowell Company, against J. Rowell, contributed $40,000 John 8. money capital by result, this that all sums drawn and, by out accomplish of dividends said business should a be offset way by amount that payment proportional plaintiffs; certain sum liti- of this corporation expenses paid by in the' same after and, be treated gation way, payments as were received other necessary equalize payments by should be decreed owners of stockholders, plaintiffs share of ef- such decree to be proportionate corporation; his over fectuated Rowell and two sons to turn requiring by to them the ascertained one proportion, being approximately seventh the total stock of the The circuit corporation. JANUAEY TEEM, IVis. n courtascertained tlie Rowell, adminis- amounts for. him the return to trator, liable to the several plaintiffs, of the cotton mill stock dеcreed, béing adjudged the decree so entered should a full and complete constitute of an him both supersession court, by accounting county Martin, settle- and a full and guardian, complete ment of their trusts in that court. respective Butler, M. and H. L. Lam
J. Olin and S. attorneys, oreux, of for the counsel, appellants.
Dor Miller there was a & brief Malone respondents Glicksman, and Timlin & Tim oral H.W. argument by lin and J. E. Malone. J. I. Demurrer. Defendants demurred separately
Dodge,
on
authorized
grounds
statute,
jurisdiction
except
in
court,
seem to insist
appeal
only
facts
to state
cause of
sufficiency
action,
alleged
under that head to
contend on behalf of
Row
the three
only
ells that
show no
be
of action
plaintiffs
right
themselves,
*8
cause
as heirs or
have no title to
they,
distributees,
any prop-
left
Ira
all title to such
erty
Eowell;
vested
property being
in the administrator. Doubtless the
is
law so as to the legal
Garthwaite,
title to
v.
any specific personal property. Meyer
True,
92 Wis.
66
704;
N. W.
Hill v.
104
571,
Wis.
80
294,
N. W. 462. Nevertheless the
beneficial
interest
equitable
of a solvent estate is in the
distributees dur
legal
the whole
of administration.
If that interest
is
ing
period
in
invaded,
must have the
that
court’s aid be
right
voked.
that
is
Primarily
ordinarily
right
sufficiently
of the administrator to
protected by
power
duty
bring
suit to
or reclaim
When,
of the estate.
protect
any property
he allies himself
however,
with the
and serves
wrongdoer,
to,
an obstacle
instead of a
of his ces-
protector of,
rights
trustentj
tuis
courts of
have no hesitation in
que
equity
recog-
interests of the latter as sufficient to
nizing
equitable
give
COURT OF "WISCONSIN.
10
SUPREME
[Mat
Rowell,
Bowell v. de- Further insistence is on the special placed separate murrer of the and and Barbers against, Stacy Gangelhoff, whom no in the fraudulent is alleged. complicity purpose are all of' stockholders in the They corporation, recipients Rowell, their stock from S. and shared in the have 'which profits have been distributed. Part of the relief granted and under this in the- grantable consists complaint forcing in plaintiffs of this participants ownership corpora tion, therefore entitled in- to share with stockholders Co., its business Luther v. C. Luther deciding J. policy. Further than is of restrain supra. this, relief by way prayed further ing- any distribution of exclusion of plaint profits iffs. no "While demanded against specific money recovery these it is are interested appellants, entirely plain they to be affected in, likely adjudication sought, by, are if not demurrer their proper parties, ones, necessary was overruled. Hausmann Bros. v.Co. properly Mfg. Kemp 67 N. 587, 591, fert,
II. Merits. The most on which important general question rests the "whole turns the find theory judgment Rowell, of the trial court that as administrator John S. ing and also as him sold transferred to surviving partner, as an self with his certain individual, sons, conjunction of the old J. Powell Sons & Co., S. partnership, which the estate of Ira Powell owned interest; quarter voidable, transfer is at the election of these plaintiffs; and, that voidable, out of being property having gone in their fair existence, choice, have either to a right, for such or to the which such price property, profits purchaser has realized from it. '"Wehave stated this intentionally ques so as to tion eliminate element of actual fraud or of every not material rules inadequacy price applying general of law at this the discussion. stage
As to the there is fact, finding dispute practically save in certain details. in an John S. Rowell clearly autocratic had him, started with position. *10 SUPREME COURT OF WISCONSIN. [Mat
n Rowellv.
Rowell,
To such a transaction the rule of
law
applicable
state has
The sale is valid or void
nothing
uncertainty.
able at the choice of those for whom he
was fiduciary,
that, too, without
to
conscious
to
regard
any
purpose wrong
or defraud them.
In re
Orphan
36 Wis.
Taylor
Asylum,
M.
534;
v. Berlin W.
43
M.
433;
Cook
Co. Wis.
Pittsburg
Co. v.
42
307, 320,
259;
74 Wis.
N.
Hutson v.
Spooner,
W.
Jenson, 110
85
26, 40,
Wis.
N.
Pat
689; Ludington
W.
v.
ton,
Gilchrist,
111
N.
208, 239,
571;
Wis.
W.
Harrigan
99 N.
These authorities also fully
sustain the rule that the
hold
such case
may
beneficiary
account for
he has
fiduсiary
realized
profits
actually
use or ultimate
either
of the trust
In
disposal
property.
he must
addition,
for the full
course,
respond
value
if he has disabled himself from
it.
property,
returning
We
must therefore conclude that the
of this
general theory
judg
ment,
extent
least of
awarding plaintiffs
profits
realized from their share of the assets of J. S.
Sons
Rowell
&
which were transferred to
Co.,
the so-called
is
corporation,
warranted
the facts and the law. Of the details
we will
later.
judgment
speak
OF WISCONSIN.
[May
COURT
SUPREME
y. Rowell,
interest in the horses
S.
by John
made
profits
there
himself; but,
being
proof
limited to
him
therefrom,
properly
plaintiffs
examined
evi
have
of the reasonable value. We
charge
preponder
to discover that the clear
and are unable
dence,
circuit
and the
the referee
ance is
finding
opposed
well be
which,
expected,
court
to such value,
anight
find
conclude that
in much conflict. Nor are we able to
сan be
in this transaction
the court of actual fraud
ing by
had full knowledge
set aside. It
S. Rowell
appears
some
values for
and had often insisted on
value,
of the true
referee.
in excess of even that fixed by
of the horses much
value, but
If
was less than true
he knew
price paid
county
his
induce
contrary
affidavit asserted
*12
a
intent
is
legiti
court to authorize
actual fraudulent
sale,
if
of fact. Counsel argues
question
mate inference
but that
referee,
had
of the
the trial court
reversed
finding
subject,
is
The referee made no
on the
finding
not the case.
the ref-
where
finding
and the trial court merely supplied
under
Hence the trial court was not acting
eree was silent.
Goult,
247,
in
Wis.
the limitation
Johnson
prescribed
and
v. E. R.
109 Wis.
82 N. W.
Co.
Remington
N.
321. The
ma
N. W.
85 W.
154, 159,
question
view,
from sentimental
the rights
terial
point
only
be the same
either case.
would
parties
which the
The next general proposition upon
judgment
that since the assets of the
were,
rests is
partnership
legal
but nevertheless were
concern,
ap
not sold to
new
effect,
its
and used
it
must
businеss, they
operating
propriated
to have entered into that business as
be deemed
capital,
are to
attributed to such
ac
earned
assets,
that any profits
extent as
value,
their
same
to the money
cording
John S. Rowell. This is logical, and,
contributed by
capital
JANUARY
1904.
TERM,
we are
involves no
it as cor-
satisfied,
approve
We
fallacy.
rect. Painter v. Painter
Obviously, applying general just principles tlie first question money examination must be the true value assets absorbed into the business partnership Rowell, John S. done under the name of the J. S. Co. This occurred
Manufacturing October 1, Up that time the continued, business of old partnership consent of all the same terms as Ira parties, before upon Rowell’s can death; we discover no reason why equitably, of this an light binding understanding, agreement at least upon survivors, the interest of the estate was not the same as if Ira exactly Rowell had lived to that date then died. This question value the assets is the point of most in it issues vigorous includes controversy, most debated. еarnestly first, taken included, property the manufacturer’s stock, completed partially completed machines, and the assortment of extra parts (machines, valued, taken at inventory cost, $15,471.01; secondly, the tools and at $5,355; inventoried machinery, thirdly, office patterns, furniture, records, files, correspondence, vest in the concern all things aiding completely new to the old without therewith successorship break, including of the real estate and as the court occupancy thus, plant, the new found, concern the conferring will old. As to the value of the first classes of two there is no The court finds open valued, them question. *13 honestly seem to respondents only question that, ineffectively, of reserved no course, The items exceptions. other were J. S. Rowell for his appropriated by new business with out valuation or any therefor. attempt pay anything trial court value of placed $35,000 what it called the upon will” of the old and thus “good firm, made total valuation of all the transferred assets of $55,832.07, S. against J. SUPREME COURT OF WISCONSIN.
16 [Mat v. Wis.
Rowell of found $40,000 capital, Rowell’s approximately money thus mak 1, 1888, of worth present $39,156.97; October Oc new business on ing starting S. Rowell’s capital J. contribu 1, 1888, tober of which the $94,989.04, plaintiffs’ $55,832.07, tion was one fourth interest in the which equaled cent, 14.694 This valuation of the whole. per good S. will as assets the estate J. part appropriated is the owner- first, attacked on numerous grounds: the estate the limitations such as it; secondly, ship in view coidd claim value any-interest in; and, thirdly, of such 'limitations.
That
indefinite and' quite
thing
the somewhat
intangible
associa
known as
wall”
conception
“good
belongs
if of money
tion of
conducting
business, and,
individuals
is an asset
value,
association,
hardly
open
ques
2
443; Bates,
Am.
439,
tion now. 2
Partn.
Lindley,
(2d
ed.)
347;
Partn.
Bur
658; Parsons,
181,
Partn.
(4th ed.)
§
§§
Dosch,
v.
Partn. 353 et
Washburn
68 Wis.
dick,
seq.;
551;
v.
Belle
82
32 N. W.
Fish Bros. W. Co.
La
W. Co.
Warren,
595;
52
Tomah v.
546, 561,
Wis.
N. W.
Bank of
Ames,
Mo.
549;
68 W.
Scudder
N.
Matthews,
Div.
In
&
1 L. R. Ch.
659;
S. W.
re David
From such
results
ownership
duty
(1899)
dili
administrator or
to exercise due
surviving
either
partner
asset,
other,
for such
like
best
pos-
obtain
gence
if
account
it
lost or misappropriated.
sible
price,
cоncern,
in his
did take
new
himself,
That
S. Rowell
doubted.
will the old firm
cannot be'
had,
whatever
method of
business
class of
doing
Every
same
continuance of the
could serve to
successorship,
suggest
name,
exact firm
except
appropriated,
enterprise,
notified ex
as also the
agents,
and the public,
selling
otherwise,
successorship;
letter heads and
of such
pressly, by.
Indeed,
name
the old
that the new
meant only
Their con-
controverted
this is not seriously
by appellants.
*14
JAEUAKY
TEEM,
Vt
Rowell,
Just what will” includes “good is not of definition. easy it varies with the of May, customs trade and general character or methods of the An business. particular early definition Lord Eldon “the that old probability customers will resort old place.” This involved ancient idea will inhered in the good where the premises business was conducted, which had some when justification inn, an or as in considering tavern, most of the theater, early cases. is too This, however, limited for modern kinds or methods business. The habit people purchase dealer or certain which is the manufacturer, foundation for will any expectation purchases continue, may depend besides many things place. Confidence in the quality the facilities goods, of the establishment to fill orders inor the personal or skill promptly, dealer integrity manufacturer/familiarity public designating name for the product, other circum- many probably stances, be mentioned as might illustrative. The will is a sort beaten from the seller to the usu- pathway buyer, and made established ally of effort easy passage by years and expense and recommenda- advertising, solicitation, tion by traveling agents, exhibition tests or displays goods, often with .local dealers by acquaintance who confi- enjoy their dence of own and the like. In neighbors, in- many —122 Vol. SUPREME COURT OF WISCONSIN. [Maw *15 y. Rowell, 122 1.Wis. it a relieves sum,
stances it costs and valuable large in at least a exertions, continuance the above-suggested a con- new be to establish suck would any necessary degree asset to transfer of this In an cern on parity. attempted or less degree assist in concern, things greater a new many valuable. and will make that effective the good to attempt out as succeeding to hold himself The right buyer the same name, to use the old business business, the former like; the own- and the matter, kind of stationery, advertising of a and so that the of old product ership patterns patents, transfer; also all after be identical may parts factory same town, at the to continue the right opportunity the old es- the records and files of to and use of have access of momеntum avail the forces and thus to tablishment, af- as well as physical and inertia effective psychological other are things important all these fairs; many will, where especially the value of good serve enhance So exclusion of other any person. are acquired of others to of these or rights, right the absence any of the value of the transferable is an them, share impairment an obstacle to find- and in degree will, probably greater good A an asset. speculative a customer for so intangible ing will of his own juris selling good sui person living of the above re- assure will may good act himself from- doing impair disable may spects, and not the less man, partner, its value; every surviving did not forever surrender upon has certain which he rights cannot taken from he partnership, entering these is the of his own his consent. use Among him without an individual in busi- himself as whatever name designate The law does not make a man anoma- ness he may engage. he in a his was once using lous because merely partnership ’ Smith is John of the firm namе. still name as part his he so, an event. lie letters sign Smith after such may hill, declare customers, may sign legend may goods JANUARY 1904. TERM, in that name that he is the owner or the maker of the goods he offers for as there is to deceive the sale, long nothing into public the belief that he is estab still the old conducting lishment or business. Fish Bros. La Belle W. Co. v. W. Co. 82 Wis. 52 N. if in a therefore, Obviously, given case the will entirely of business were good dependent on personal individual, with or confidence in an acquaintance the sale value of that if indi- will would be slight, vidual were to sever from it and in sale of the same engage *16 articles. So, if the of a again, bush product manufacturing ness for its depended or utility popularity upon patents, transfer be of little value to one who could use such might not patents. claim that all of
Appellants evidence for opinion plaint- iffs as to value of will was vitiated deprived any at least three erroneous weight by elements in the hypotheses on which based, that in a transfer namely, could be included the exclusive use of the firm to -manufacture name, right under embodied in the patents machines theretofore manu- factured, exclusion of the survivors of the firm from on the business of similar carrying manufacturing selling machines under their own names. The extent to which the first and last of these were so owned rights copartner- that could have been transferred to has ship they strangers somewhat been already rule suggested. general may stated so far as a firm name serves to es- designate and not tablishment, it individuals, merely existing belongs and can be transferred to a partnership, stranger pur- far the business. So as that name consists of chasing merely the names there is not such individuals, existing in it as to or prevent surviving outgoing partners their own.names to themselves in describe a new busi- using not, so do either ness, structure a new long firm or the idea of their otherwise, name convey identity or to the old succession concern. Meanwhile the successors to SUPREME OE
.20
COURT
WISCONSIN.
[Mat
v.
the old
use
must
without
not,
agreement,
express
the old
indi-
firm name as to
idea
retiring
convey
viduals are still
it.
rule was originally
сonnected with
This
fall
put
ground
thereby pecuniary liability might
but other
partner,
equal import-
retiring
grounds
ance
may
that his
such,
example,
reputation
support it—
suffer
reason of
or dishonorable busi-
inferiority
goods
ness
to which he is
made
conduct,
thereby
ostensibly
party.
Co.,
Fish
W.
v.
Belle W.
v.
Bros.
Co.
La
Williams
supra;
Farrand,
Mich.
50 N.
Cottrell Babcock
446;
88
W.
v.
473,
138,
are,
P. P.
54 Conn.
Turning support contentiоn of counsel that of the so-called appellants’ many will witnesses -whotestified reference to the with expert good less in their included greater degree good conception or all of will some the elements criticised above. Some of them valued that item that the outgo upon hypothesis could not or would not in a similar busi ing partners engage to do ness; that the would be entitled purchaser firm, the old name at S. the name of least of John using in so and that such would be en doing; purchaser ma titled to continue the use of elements of any .patented success; so far as the same were to their chines, important that, cross-examination some of these witnesses said upon these elements will would not be eliminated, good asset—as one or two would be worth it, nothing salable put would it. But both of these extreme because nobody buy cross-ex statements elucidated and modified upon amination. out those elements of Witnesses pointed of value even after the elimination will which be might to a among as could not have been sold things stranger, mentioned such pat which, instance, things may and desig and a head used as a trade-mark terns, tiger ex several the machines. On the nating part appellants, *18 there testified that were called who pert generally witnesses sub- was no a also were business, will to such but good OE WISCONSIN. SUPREME COURT [Mat - cross-examination, the philoso and elucidated
ject rigid of their facts mentioned conclusions. phy Among the incurred by of witnesses was the expense usually testimony in relation themselves concerns manufacturing placing cus with the annual trade, finding expenses would tomers not from sales, would absorb the returns witnesses enable the business. Certain doing profitable in start testified that it was their the result of experience at least two and three years’ new business ing perhaps an must be in this that in old profits spent way, buying business avoided. The established could be expenditure valuation will these witnesses placed by expert good upon zero to $75,000, this business varied way as we have cross-examination modified, statеd, ostensibly by details some measure of illumination as to the of' of a will cost in a what establishment would new good what business and of such avoided expenses might an over of old concern. This was taking essentially running for the a multitude field of items of testimony balancing and evidence. is There indicate that'either nothing court referee or the unless law, rules it is applied wrong the value fixed this That will. magnitude good .those witnesses who testified there was whatever to no value will of if and Ms John S. Rowell sons could the manufacture of similar engage implements, them the trade under their wild advertise own -were name, fact we can have doubt. There is one circumstance is not dwelt obvious, which either counsel, although upon by nor much referred to to one at all which, witnesses, an familiar with established old, business, manufacturing and that of the as refutes the retention opinion, of extras and sortment had been accumulated patterns in this business years, rec through thirty accompanied by of the construction of the different machines at ords various It that almost had times. been made appears yearly changes *19 TEEM, JANUAEY y. Rowell, 122 1.Wis.
Rowell turned out the so that machines, parts being different had char in from those which them, of differed many earlier. Now, acterized the machines ten years machines had been more than John S. forty years, several later distributed the the years, through country —in life of thousand It is some annually. apparent is well- as It these machines was much as twenty years. in is' fact that the item farm implements known of repairs to be those would have that, substantial one, repairs in than the dealer one other manufactured specially any manufact a much the cost, at original machines, greater is called of what urer acquires substantially monopoly That element of business,” charges “repair accordingly. cent, of business has the old, largest per profit; an established is in use of'the product factory more and, that trade. Obvi the more valuable is farmers, among an assortment an that had on hand establishment ously ma for them not made new extra many being thosе parts, from which could be also had the who chines, patterns would have a machines, great parts antiquated produced not new establishment and substantial over advantage in themselves, the sale of not only repairs equipped, local selling of relation with the former in the maintenance in order maintain confidence agri who, agents, about must be able them, promptly cultural community and worn out the machines which they broken parts supply not before. This equipment many had sold perhaps years sales of the making repairs quantity enabled only but it an added attractive, to be gave facility profits the country. desirable agents through selling retaining others is but item. might suggested, This one Many different these some twenty-six this patterns purpose and for of manufacture process of machines kinds abandoned, but meanwhile were used, formerly many parts For them whatever nothing sum. large worth doubtless OF COURT "WISCONSIN. SUFREME [Mat 1.Wis. court, nor allowed tbe partners, surviving paid will, allowance for included in the except located them. certаin of the witnesses where all the and re-examination of After a careful examination that it can is convinced the court subject, testimony *20 of in its court conception either that the trial adopted not say been conveyed could not have elements which the will good found the referee that amount finally nor the to stranger, to that clear is in the trial court antagonism approved is nec evidence which of the and undoubted preponderance of trial courts upon ques a reversal of the findings essary intrusted with the while ventures, of The writer tions fact. court, say of the whole the conclusions duty expressing men above from the valuation patterns that, apart would, conclusion, the same he could not reach tioned, to the view great preponderance feel constrained value of the will to approxi limited the evidence amount allowed. Such con one third of the personal mately to the view of his associates, viction must, however, yield is that this item of allowanсe can the conclusion of the court not disturbed. attack made "onthe judg-
The next
by appellants
important
the share of the
realized
ment is the
inadequacy
profits
attributed to the exertions of those
which was
after
court
the business. The
recognized
principle
managing
the affairs of the
closing
while surviving partners,
up
whén
are not entitled to
services,
firm,
compensation
yet,
demand not
fair
in the estate elect to
only
those interested
of their
but also share
earned
interest,
value
profits
in-
a court of
of the whole
will
use
property,
equity
are attributa-
to what extent the
of the business
quire
profits
if
it,
services of those conducting
and,
ble
personal
so to
reasonable cer-
some share or sum is
be with
proved
seek
on the
that those who
that,
will allow
theory
tainty,
accord
also that
due to such services
it,
must
profits
equity
TERM,
JANUARY
Rowell,
Pursuant to this made an allowance court principle, the three in addition to $19,733.32, surviving partners salaries in the course of had the business been paid. Those salaries to the stockholders amounted $103,650, the total allowance for thus services of those con- bringing This sum ducting up $123,383. approxi- to one third im mates of the total net very earnings, closely elusive of such or one half of the amount of net allowance, *21 invested, to be to the profits remaining apportioned capital in the fourteen which have years averaged approximately cent, fifteen or sixteen annum. ex- per per After careful business, of the evidence as to amination the course of we are unable to conclude that the court’s allowance was if at as to a disturbance all, seriously, inadequate justify re- it on we have felt no inclination to though might appeal, duce had some sum been allowed. it, moderately greater
Another made of the complaint judgment by appellants cov- that it makes no allowance for the use of improvements S. which did not to the old firm of J. ered by patents belong and the Go., Rowell Sons & use of which has been valuable to the new concern. So far as these productive profit have been the S. result of invention improvements or his sons since their 'bene- during period fit to the has been considered and allowance therefor made the extent to which of these the services estimating business; several men have contributed to the success of the SUPREME OF COURT WISCONSIN. [May 1.Wis. addition, but, in to snob inventions, there existed prior Rowells, 1888 two very to the important patents belonging to which the evidence is undisputed improvement has been of ex- patented value to great business, tent that alone would amount to for each royalties $1 at least machine in which either such has em- been improvement bodied. Those are numbered on cultivator patents 10,076, teeth, 343,280, seeder and drill. interchangeable evidence and exhibits also disclose machines the number of which have been these manufactured, embodying improve- ments. We cannot avoid the conviction that recognition should be to the fact that such given machines could have been neither made nor sold with the economy profits have resulted, the use of these No except by patents. right to use transferable to a them, existed in the old stranger, part- nership, stated; already extent, least, mere value, it seems certain that entered royalty have into and earned in promoted the new business. It profits would have been perhaps entirely competent possible Mr. Rowell to have demanded as a con reasonable‘royalties dition of them to be used allowing the new corporation, but the fact that he had not done so, but, without has charge, their permitted enjoyment, supposing, however, the ben efit was to himself and inuring those on whom he chose confer it, would every principle equity that, require so far as the are due to these profits he should not patents, now be to make required payment We shall plaintiffs. not deem it to state necessary the detail of fur- the evidence, ther than that it establishes at least $1 machine as value per *22 to the business from the use of these patents, that from 1, 1888, October onward, there have been manufactured 9,900 sold of such machines. This sum should be ($9,900) deducted the amount of ascertaining as profits, such, which have been realized Rowell and his associates from use of the entire corporation. capital In effect, practical TERM, JANUARY Williams, 122Wis. 27.
Williams cent, of the 14.694 this a deduction of per -would mean money interest, $25.45 ox $9,900, $1,454.60, to the awarded judgment plaintiffs. errors all of the substantial
We have now gone through rec- seen fit to urge. have counsel appellants errors, ord in the voluminous, case is tremendously nu- are reserved below, very suggested by exceptions himself to those but counsel has seеn fit to confine merous; him,- understand and, which have we discussed, now been court from meant any duty has absolve thereby errors. material this for other search multitude exceptions concession, have been willing accept implied We very thou- many refrain from an to examine attempt far as re- record, sand except they, manuscript pages errors late to particular assigned. is modified Court. —The by changing
By-the judgment from $18,771 awarded first thereof amount by-the paragraph as so is affirmed. modified, $17,296.95, and, Appellants in this allowance for to recover costs total court; printing to 200 pages. be limited fully In I add that I C. J. this case desire to
Cassoday, of Mr. the individual Justice concur opinion Dodge, court as to the value of the the trial finding effect reduced. will should greatly Respondent. Williams, Appellant, Williams, vs. April May Voluntary separation: Division
Divorce: Evidence: estate.' fey ground divorce a lrusfeand In an action for on the of deser- js finding tion, tfee tlie evidence held to sustain tfeat wife was ground counterclaim, a divorce' her on the entitled to years. voluntary separation for five