5 N.W. 872 (Wis. 1880), Haben v. Harshaw

Citation:5 N.W. 872, 49 Wis. 379
Opinion Judge:HARLOW S. ORTON, J.
Attorney:For the appellant there was a brief by Finch & Barber, and oral argument by C. W. Felker: Moses Hooper, for the respondent:
Case Date:May 11, 1880
Court:Supreme Court of Wisconsin

Page 872

5 N.W. 872 (Wis. 1880)

49 Wis. 379




Supreme Court of Wisconsin

May 11, 1880

Argued April 26, 1880

APPEAL from the County Court of Winnebago County.

Replevin. The goods in controversy formed part of the stock in trade of F. X. Haben & Co., and are valued at about $ 75. Plaintiff claims them by virtue of a chattel mortgage from the firm. Defendant justifies as sheriff under an attachment sued out by certain creditors of said firm.

The members of this firm were F. X. Haben and his father-in-law, James Nagle. The business of the firm was that of a retail grocery, Nagle furnishing most of the capital. He was an old man, incapable of active business, and lived with Haben. The store in which the business was carried on was owned by Mrs. Haben. Plaintiff was a brother of F. X. Haben, and was engaged in the clothing trade. The indebtedness for which the mortgage was given to the plaintiff was for goods furnished to the family of F. X. Haben; for money loaned to him, and used, as he testified, in the business; and also for goods furnished upon orders of F. X. Haben, given in payment for work upon the store building, and for merchandise used by the firm. The account was kept, upon the plaintiff's books, in the name of F. X. Haben.

On July 1, 1876, the firm, with the consent of both partners, gave to plaintiff its note for $ 300 to pay this account, which then amounted to that sum; and on June 1, 1878, a further account of the same kind having accrued, amounting to $ 109.25, again gave its note for the last named amount. On September 10, 1878, both these notes were taken up, and a new note given for the sum of $ 409.25, payable one day after date, and secured by chattel mortgage on the entire partnership stock, valued at $ 600; under which mortgage plaintiff took possession the same day.

Upon the trial, the plaintiff was allowed, against defendant's objection, to introduce certain evidence as to the manner in which the members of the firm lived, and how their necessary expenses of living were paid. The nature of this testimony is indicated in the opinion.

The court charged the jury that the firm of Haben & Co. had the right, with the knowledge and consent of all the members, to assume the individual debt of a partner, and that, except as against existing creditors of the firm, it would thereby become a valid firm obligation. It also...

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