Wyss v. Albee

515 N.W.2d 517, 183 Wis. 2d 245, 1994 Wisc. App. LEXIS 470
CourtCourt of Appeals of Wisconsin
DecidedMarch 24, 1994
Docket92-2572
StatusPublished
Cited by5 cases

This text of 515 N.W.2d 517 (Wyss v. Albee) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wyss v. Albee, 515 N.W.2d 517, 183 Wis. 2d 245, 1994 Wisc. App. LEXIS 470 (Wis. Ct. App. 1994).

Opinions

DYKMAN, J.

This is an appeal from a judgment dismissing John Wyss's claim for a deficiency or other money judgment against Alfred Albee and other Defendants. We have previously heard this case. In Wyss v. Albee, No. 89-1808, unpublished slip op. (Wis. Ct. App. Mar. 28,1991), we reversed a summary judgment that dismissed Wyss's complaint. On remand, a trial was held, which resulted in this judgment. Wyss appeals.

Wyss sold his farm on land contract to Co-Jem Farms, a partnership. Co-Jem was a limited partnership, but because no limited partnership certificate was properly filed, Defendants were liable as general partners.

In our previous opinioii, we concluded that Albee and the others were general partners under Iowa law, and because the Defendants had not established a prima facie defense, we reversed a summary judgment in their favor. Id. at 15-19. The issue in this second appeal is whether Co-Jem may be held liable for a deficiency in the first instance. The trial court concluded that a statute of frauds made the land contract ineffective as to Co-Jem. We agree, and therefore affirm.

The basis of the dispute in this case is Co-Jem's First Amended Agreement and First Amended Certificate of Limited Partnership. It provides in pertinent part:

[249]*249ARTICLE II.
NAME AND BUSINESS OF THE PARTNERSHIP
B. The purpose of the partnership shall be to purchase, sell, develop, and farm real estate located in the States of Minnesota or Iowa, and to buy and sell all property relating to such business and to enter into any and all contracts relating to the same.
ARTICLE V.
DUTIES, POWERS AND COMPENSATION OF PARTNERS
A. The general management, control and conduct of the business shall be solely vested in the General Partners, except that without the written consent or ratification of all Limited Partners, the General Partners shall have no authority to:
1. Do any act in contravention of this First Amended Agreement and First Amended Certificate of Limited Partnership ....

The real estate Wyss sold to Co-Jem is in Wisconsin. Co-Jem signed the land contract: "CO-JEM FARMS, an Iowa Partnership [,] By: Robert J. Lager, Jr., partner!, and] By: James E. Miles, partner." Wyss also signed the contract.

The trial court held that § 706.03(1), STATS., 1989-90,1 rendered the land contract between Wyss and Co-Jem unenforceable. That statute provides:

[250]*250A conveyance signed by one purporting to act as agent for another shall be ineffective as against the purported principal unless such agent was expressly authorized, and unless the authorizing principal is identified as such in the conveyance or in the form of signature or acknowledgment. The burden of proving the authority of any such agent shall be upon the person asserting the same.

The trial court found that Lager and Miles were not expressly authorized to purchase Wisconsin land for Co-Jem, and that there was no written ratification of their acts.

MARTH V. EDWARDS

Wyss argues that § 178.06(1), STATS., applies to this case, not § 706.03, STATS. Section 178.06(1) provides:

Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.

In Marth v. Edwards, 159 Wis. 2d 773, 465 N.W.2d 248 (Ct. App. 1990), William and Violet Edwards sued Greenbriar Partnership and Doerr, one of Greenbriar's partners, for breach of a real estate purchase agreement. They asserted that Swoboda, another Greenbriar partner who had signed the agreement to buy real estate from them, was Greenbriar's agent. [251]*251They claimed that Swoboda had the apparent authority to bind Greenbriar and Doerr, making the partnership and Doerr liable for damages resulting from breach of the agreement.

Marth considered the conflict between §§ 178.06(1) and 706.03(1), STATS. We concluded that § 706.03(1) takes precedence over § 178.06(1). We said:

Chapter 178, Stats., is not a vehicle of protection for those involved in real estate transactions with partnerships. The vehicle of protection is rather the statute of frauds. Had the Edwardses followed that statute, they would not be in the position they are today. We conclude that the very simple and expedient way to protect those dealing in real estate transactions involving partnerships is the statute of frauds. That, not "apparent authority" under ch. 178, is the remedy provided by the legislature.

Marth, 159 Wis. 2d at 781-82, 465 N.W.2d at 251-52.

The facts in Marth are quite similar to the facts here. Though Co-Jem is not a defendant here, Wyss correctly argues that his "contractual claim is against the Co-Jem partnership, not the respondents." We also agree with Wyss's assertion that: "Any recovery by John Wyss on his claim must, therefore, be as a result of whatever enforceable contract John Wyss has with the Co-Jem partnership. It is not through any direct relationship with the respondents." Therefore, in both Marth and here, the critical inquiry is into the agent's ability to bind the partnership. If Co-Jem is bound, our previous decision in Wyss v. Albee necessarily binds Albee and the other partners named in this case. But without Co-Jem's liability, its partners cannot be liable either.

[252]*252Wyss first asserts that the facts in Marth are different from this case. He suggests that Marth does not control because, unlike the land contract in this case, the conveyances in Marth did not identify a partnership. He points out other differences, such as the fact that his land contract had "all of the earmarks of a fully negotiated" deal and had been "substantially, if not completely performed" until the time of default. Wyss asserts that had he "been dealing with a single individual, had the conveyance been signed only by that individual with no mention of a partnership, had the transaction been vague and incomplete, and had there been no contract performance, then Marth might control the present case."

What Wyss is really asking is that we limit Marth to its facts. Our quotation from Marth shows that we intended the opposite. We spoke of the statute of frauds as providing protection to noncontracting partners. Our warning to the vendor in Marth might as well have been given to Wyss — had he demanded that Co Jem follow § 706.03(1), STATS., he would have been protected. As one commentator noted:

An agency power to convey may now be given by express oral authorization if the authorizing principal is identified as such in the conveyance or in the form of signature or acknowledgment.

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Bluebook (online)
515 N.W.2d 517, 183 Wis. 2d 245, 1994 Wisc. App. LEXIS 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wyss-v-albee-wisctapp-1994.