Read v. Nevitt

41 Wis. 348

• Court: Wisconsin Supreme Court
• Decided: January 15, 1877
• Status: Published

Opinion

Ltok, J.

The fact that’the partnership affairs have never been adjusted, even though'an adjustment thereof would show a balance due the defendant from the plaintiff, is no impedíment to the maintenance of this action. The agreement is for the payment, in a certain contingency, of a specific sum of money by one party to the other in case of a dissolution of the partnership. The party who becomes liable under the contract to pay such money, is the debtor of the other party; and the latter may maintain an action against him therefor, without regard to the partnership relations formerly existing between them or the state of their partnership accounts. Sprout v. Crowley, 30 Wis., 187, and cases cited.

It is conceded that the partnership was dissolved before this action was commenced. Hence, under the contract, but two conditions are essential to the plaintiff’s right to recover. 1. The plaintiff must be the retiring party; by which we understand that he must have ceased to carry on the business in which the firm had been theretofore engaged; and 2. The defendant must have continued such business.

The firm was engaged in an insurance business as the agent in Oshkosh of several insurance companies, and in the land-agency business. The testimony tends to show that the land-agency business of the firm at the time of the dissolution was comparatively small, its principal business being that of insurance. On the 3d of August — three days before the dissolution,— the defendant wrote a letter to each company represented by the firm, to the effect that he could not longer continue in copartnership with the plaintiff, and soliciting the agency of each such company. There were seven of these companies, and the agency of five of them was promptly conferred upon him. One, the Phcenix of Hartford, ceased to take new risks in Oshkosh; and the remaining company transferred its business to another agent. The defendant took from the late office of the firm the books of the various companies which had made him their agent, and also of the Phoenix company, and thereafter transacted the business of such companies as the firm had formerly done. He also did some land-agency business after the dissolution, for a customer of the late firm. The plaintiff has transacted no insurance or real-estate business (so far as it appears) since the dissolution. It does not appear that he was ever solicited to aid the defendant in procuring the agencies of the companies represented by the late firm, or that he has interposed any obstacle to the transfer thereof to the defendant, or made any objection thereto.

In view of these facts we think it cannot be successfully denied that the plaintiff is the party who, on the dissolution, retired from the business of the firm, and that the defendant continued such business.

It is true that the defendant’s business after dissolution was not precisely the same as the firm business, but the change was no greater than was liable to happen had the firm continued.' We think the learned circuit judge gave the law correctly when he instructed the jury that a substantial continuing of the firm business by the defendant would fulfill the condition of the contract in that behalf. There is abundant evidence tending to show that the defendant substantially continued such business after the dissolution of the partnership.

We are further of the opinion that an agreement or understanding between the parties that the plaintiff should retire from the business of the firm and the defendant should continue it, is not essential to the plaintiff’s right of action. We find no such stipulation in the contract. The money which the continuing party agreed to pay was for the interest of the other party in the firm business, and the defendant has succeeded to that interest. What does it signify, therefore, that the defendant obtained the firm business by his own exertion and influence? However qbtained, the defendant has substantially the whole business df the late firm, and for the plaintiff’s interest therein the defendant agreed to pay the sum which this action was brought to recover. Had he called upon the plaintiff to aid him in procuring the agencies, and had the plaintiff refused to do so, or had the latter thrown obstacles in the way of the transfer of the agencies 'to the defendant, there might be some ground for saying that the defendant had built up a new business, and was not carrying on and continuing the business of the late firm. But nothing of the kind occurred. The defendant succeeded in procuring the transfer to himself of most of the firm business without the aid of the plaintiff, and the latter acquiesced in such transfer without objection. Under such circumstances, we do not perceive how an agreement or understanding between the parties that the firm business should be thus transferred, can be of any importance; and we think that the proposed instructions on that subject were correctly refused.

The defendant assigns as error the admission in evidence of the letters of August 3d, sent by the defendant to the various insurance companies represented by the firm, soliciting the agency of those companies for himself. It seems to us that those letters, considered in connection with the action of the companies in response thereto, tend to prove that the defendant continued the business of the firm, and hence, were properly admitted. The record shows no other ruling on the trial which requires particular notice.

Failing to find any material error disclosed in the record, the judgment of the circuit court must be affirmed.

By the Court. — Judgment affirmed.