40 N.W. 577 (Wis. 1888), Severson v. Porter

Citation:40 N.W. 577, 73 Wis. 70
Opinion Judge:ORSAMUS COLE, C. J.
Party Name:SEVERSON and another, Appellants, v. PORTER, Garnishee, etc., Respondent
Attorney:John M. Whitehead, for the appellants, I. C. Sloan, for the respondent, argued,
Case Date:December 04, 1888
Court:Supreme Court of Wisconsin
 
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Page 577

40 N.W. 577 (Wis. 1888)

73 Wis. 70

SEVERSON and another, Appellants,

v.

PORTER, Garnishee, etc., Respondent

Supreme Court of Wisconsin

December 4, 1888

Argued November 13, 1888.

APPEAL from the Circuit Court for Rock County.

Garnishment. The principal action was brought against Joseph K. P. Porter. The garnishee, Isaac G. Porter, is the assignee named in a voluntary assignment executed by Joseph K. P. Porter, William B. Porter, and Joseph B. Porter, as partners, for the benefit of their creditors. The garnishee answered denying all liability as such. The plaintiffs took issue upon such answer. Upon the trial the circuit court found the facts in substance as follows:

In 1869 Joseph K. P. Porter, who then owned and occupied a farm of about 317 acres in section 5 of the town of Porter, Rock county, took his son William B. Porter into partnership with him, and the two carried on the business of farming on said premises until 1879, when they took into the partnership Joseph B. Porter, another son of said Joseph K. P. Porter. The firm then engaged in the general business of farming and tobacco growing, which they carried on until January 22, 1887, when the assignment above mentioned was made. This business was conducted without any partnership or firm name, but "the names of any one or more of said members of said partnership were used and signed as and for the name of the firm, and bound and made liable the said firm and all the three members thereof as partners." Joseph B. Porter, when he became a member of the firm, was admitted therein as an equal partner and became joint owner of all the partnership property equally with the other two.

From the times respectively when the two firms above mentioned were formed, all the debts owing by the firm and the members thereof, in whatever name contracted, were the debts of the firm. The firm last formed became liable for the payment of all such debts, and all of the personal property owned by the partners became the property of the firm and continued to be the property thereof until the execution of the assignment, January 22, 1887, except as hereinafter mentioned.

The title to the land above mentioned was in Joseph K. P. Porter, and he was the owner thereof until the assignment was executed. Prior to 1879 such land was subject to the incumbrance of a mortgage for $ 6,200, and the firm made payments to apply on the interest on said mortgage during the continuance of the partnership.

In October, 1883, the firm purchased about 320 acres of land in sections 8 and 16 in said town of Porter, the title being taken in the name of William B. Porter and Joseph B. Porter. The purchase price of said land was not found by the court, but it was found that the firm paid in cash $ 300, gave a note for $ 700 signed by all the members of the firm in their individual names and by one T. C. Richardson as accommodation maker, and that the balance of the purchase money was secured by mortgage of the premises. After such purchase the business of the firm was carried on upon both farms, and upon other lands leased by it.

In January, 1887, the firm became financially embarrassed and unable to pay its debts. The members of the firm then divided among themselves the personal property, stocks, and farming implements owned by the firm, "to a sufficient extent so that each owned in severalty sufficient of said property to make up the amount of exemptions allowed by law for each of said partners;" and thereafter, on January 22, 1887, they executed to Isaac G. Porter, the garnishee herein, the general assignment in question.

This action was commenced in April, 1887, upon notes given in 1885 and 1886 for the balance of an account due the plaintiffs for lumber sold and delivered. The...

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