Gimbel Bros. v. Kelly

176 N.W. 61, 170 Wis. 637, 1920 Wisc. LEXIS 36

• Court: Wisconsin Supreme Court
• Decided: February 10, 1920
• Status: Published

Opinion

Rosenberry, J.

It is the claim of the plaintiff that the partnership of the defendants is established as a fact, and second, that, failing the establishment of the partnership as a fact, the defendants are by their conduct estopped from denying the existence of the partnership.

No useful purpose would be served by setting out at length the details upon which these claims are based. We ha.ve made a careful examination of the record, from which we are convinced that the circuit court was right in holding that there was no evidence of partnership as a fact, and no evidence of partnership by way of estoppel.

It appears that the defendant Kelly on' behalf of the King-Kelly Company signed a guaranty or order for goods to be delivered to Mrs. Farrell, not exceeding $100. It is now claimed that the judgment of the circuit court in directing the dismissal of the action is erroneous because under the provision of sec. 3072m, Stats., the cause should have been sent back for a new trial. There was no error in this case as to any matter of pleading or procedure. The judgment was reversed not because of error in the matter of pleading or procedure, but because no cause of action such as alleged in the pleadings exists in favor of plaintiff against the defendants. No other cause of action was pleaded or attempted to be pleaded. Therefore the circuit court was right in directing the dismissal of the action.

By the Court. — Judgment affirmed.