Schœffler v. Schwarting, 17 Wis. 30

Schœffler v. Schwarting

17 Wis. 30 | Wis. | 1863

By the Court,

Cole, J.

We are most clearly of the opinion that the injunctional order in this case should have been set *35aside. The injunction was issued to restrain tbe appellant, tbe defendant below, from interfering with property described in a chattel mortgage given to bim as administrator of tbe estate of R. Wendte, to secure the payment of four promissory notes executed by tbe plaintiff in part payment of the interest of tbe estate of said Wendte in a newspaper establishment in Milwaukee. Tbe plain tiff sought to enjoin tbe defendant from intermeddling with the property mortgaged, and from disposing of tbe notes, and demanded that they be delivered up for cancellation.

It is exceedingly doubtful whether the matters stated in tbe complaint entitle tbe plaintiff to an injunction and to tbe relief be seeks. It is claimed, in substance, that these notes and tbe mortgage were without any consideration, although given in March, 1859, for an interest of tbe estate of Wendte in a printing office and newspaper establishment, on tbe plaintiff’s own proposition of tbe value of such interest. Tbe plaintiff avers in the complaint, that notwithstanding bis having purchased such an interest and agreeing to pay therefor twenty-five hundred dollars — several hundred of which he has already paid — yet that in fact Wendte owned no such interest, but was a mere hired clerk in the establishment. But the conduct of the plaintiff throughout can only be accounted for on the theory that a co-partnership existed between him and Wendte in the business of printing and publishing a German newspaper in Milwaukee. He admits in the complaint that in 1851 an advertisement was published in the paper that Wendte was a partner in the newspaper establishment, and< that the business thereof should be transacted under the name and style of Schoeffler & Wendte. After the death of Wendte, in 1857, he permitted an inventory and appraisement to be made and returned to the probate court, which stated that Wendte owned one half of the establishment at the time of his decease, In explanation of this, he says that he assented to the making of that inventory on account of representations made to him *36by the administrator and his attorney. Such a statement is utterly improbable and inconsistent with all the rules of human conduct. What representations could induce him to have one half of his printing office inventoried and appraised as belonging to another, when in fact such party owned nothing therein ? But not only this: it seems, from his own showing, that in 1859 he entered into a written contract to purchase that interest, and agreed to pay twenty-five hundred dollars for it, giving the notes and mortgage which he now seeks to have delivered up and cancelled, in part payment. He was induced to do this, again, by certain representations made by the administrator as to his claims and rights in the printing establishment. It is impossible not to distrust the correctness of such statements. They are very improbable on their face. Eor whether a partnership existed between the plaintiff and Wendte from March, 1.851, to January, 1857, is a fact about which he could not possibly be mistaken. If Wendte was not his partner during this time, why did he acknowledge him as a partner in the columns of his paper ? Why did he settle with tne administrator on the basis that Wendte owned one half of the establishment, when in fact he owned nothing ? Why agree to pay twenty-five hundred dollars for an interest which had no existence ? Why pay a portion oí the consideration agreed upon for the partner’s interest? There is nothing in the complaint that affords any satisfactory answer to these questions. So in regard to the alleged mistake in the settlement made, as to the true state, of the accounts between Wendte and the firm.'- The respondent had all the books and accounts, in his possession, and ample time to examine them; and it is impossible to believe he settled under any mistake of fact as to the state of the account.

Thus it is seen to be exceedingly doubtful about the complaint itself presenting any case for an injunction. The matters stated are so improbable and inconsistent with the experienced course of human conduct, that one cannot help regard*37ing tbem witb much suspicion. For although the existence of a partnership between the plaintiff and Wendte is flatly denied, yet circumstances are stated and admissions made which tend strongly to overcome the force of this denial. But the question does not rest upon the complaint alone. The answer of the administrator was filed, which fully denies all equities in the complaint. It shows most conclusively that the plaintiff is not entitled to the relief which he demands. And the answer upon all points is powerfully supported by the affidavit of Bode, who shows that the settlement made by the administrator with the plaintiff was fair, and that no fraud or improper influence was brought to bear upon him to induce him to make the purchase he did. It appears from his statement, as well as that of the administrator, that the plaintiff himself offered to purchase the interest of Wendte in the printing-establishment for twenty-five hundred dollars, and that this agreement was finally consummated by the execution of the written contract. Under these circumstances, the court should have vacated and set aside the injunctional order.

[Note. — There was a subsequent appeal to this court in the above cause, which will he found hereinafter reported, as of the June Term, 1863. — Rep.]

The order refusing to set aside and vacate the injunctional order, ^therefore reversed, and the cause remanded for further proceedings according to law.