Sullivan v. Sullivan

122 Wis. 326 | Wis. | 1904

Cassoday, C. J.

1. Counsel invoke tbe rule that tbe findings of tbe referee should not be disturbed by tbis court on appeal unless they are against tbe clear preponderance of tbe •evidence. But tbe question here presented is not as to tbe effect of such findings, but as to whether tbe trial court was justified in setting aside and vacating tbe report and findings of tbe referee and tbe order of reference, and then trying tbe cause.de novo. Tbe principal reason given by tbe trial court for making such order was to tbe effect that tbe evidence so reported by tbe referee was so uncertain, indefinite, and insufficient that tbe court was unable to determine whether tbe indorsement made by tbe committee of the check for $1,599.94, given by Jacob Speicb October 17, 1901, was sufficient to bind tbe plaintiff and tbe other six persons who shared in tbe proceeds of tbe check. Moreover, tbe findings of tbe referee do not seem to cover all tbe issues involved; and some of them seem to be contrary to tbe undisputed evidence. Tbis court has held that tbe trial “court may, in its discretion, vacate tbe report of a referee and order a new trial before itself, when it is unable to determine whether tbe facts found by tbe referee are established by tbe proofs.” Fairbanks v. Holliday, 59 Wis. 77, 17 N. W. 675. Certainly, we cannot say that there was any abuse of discretion in making tbe order in question.

2. Tbe important question in tbe case is whether tbe plaintiff and tbe defendants and tbe other three persons mentioned in tbe.complaint and answer, who contracted to deliver milk at the factory, were copartners in the venture, as found by the trial court. As held by that court, the seven persons who thus agreed to deliver milk at the factory jointly hired the cheesemaker and mutually and jointly agreed to pay him wages therefor; and they also mutually agreed to run the business, as found by the court, and, after paying all expenses and losses, to divide the net proceeds in proportion to the respective shares of each. It seems to have been conceded by all parties who testified before the referee that the seven persons who so agreed to deliver milk at the factory were to share any losses that might occur. The fact that three of them owned the factory, and that the other four paid them for the use thereof, did not prevent the seven from being partners in the business. There seems .to be no substantial dispute in the testimony. The first witness called on the part of the plaintiff before the referee testified that “each man got his proportionate share of the profits and each man stood his proportionate share of the loss of bad cheese and his proportionate share of the expense of manufacturing.”

A very learned English Master of the Rolls (Sir G-eoege Jessel) refrained from making any attempt to define a partnership, because there had been so many attempts with no two agreements, except in a general way. Pooley v. Driver, L. R. 5 Ch. Div. 458, 471. In that case it was held that: “In the absence of something in the contract to show a contrary intention, the right to share profits as profits constitutes, according to English law, a partnership.” See 1 Lindley, Partnership, 1 — 5. Here the expenses, and also the losses if any, were to be first paid, and then the net profits were to be divided among the seven persons, each to réceive his proportionate share. This constituted a partnership by all the authorities. 22 Am. & Eng. Ency. of Law (2d ed.) 13 ei seq.; Ellsworth v. Tartt, 62 Am. Dec. 749, and note. See, also, Miller v. Price, 20 Wis. 117; Wood v. Beath, 23 Wis. 254; Gilbank v. Stephenson, 31 Wis. 592; Upham v. Hewitt, 42 Wis. 85; Wipperman v. Stacy, 80 Wis. 345, 50 N. W. 336; Serfling v. Andrews, 106 Wis. 80, 81 N. W. 991. Tbe case of Sargent v. Downey, 45 Wis. 498, S. C. 49 Wis. 524, 5 N. W. 903, seemingly relied upon by counsel, is too broadly distinguishable in its facts to require special consideration. It is true that no particular partership name was agreed upon, but it was not essential that there should have been a particular partnership name in order to constitute a partnership. Severson v. Porter, 73 Wis. 70, 40 N. W. 577.

The findings of the court are fully sustained by the evidence. Since the seven persons named were partners, there can be no reasonable doubt but what the duly authorized' committee, representing the firm, had authority to indorse and negotiate the check as it did. The check having been dishonored and duly protested, there can be no question but what the firm were liable upon such indorsement to reimburse the bank for the amount of the check. The committee, having received $230 as the plaintiffs share of a subsequent sale of cheese owned by the firm, certainly had the right to retain the same, and apply it in payment of the plaintiffs share of such liability to the bank. Upon the facts so found the plaintiff has no cause of action against the three partners who are made defendants in this action. Sprout v. Crowley, 30 Wis. 187.

By the Court. — The judgment of the circuit court is affirmed.