Best v. Pike

• Decision Date: 22 May 1896
• Citation: 67 N.W. 697,93 Wis. 408
• Parties: BEST ET AL. v. PIKE.
• Court: Wisconsin Supreme Court

93 Wis. 408

67 N.W. 697

BEST ET AL.

v.PIKE.

Supreme Court of Wisconsin.

May 22, 1896.

Appeal from circuit court, Ashland county; John K. Parish, Judge.

Action by George Best and others against R. D. Pike to dissolve an alleged partnership and for an accounting. By agreement of the parties there was also included in the action the private and personal accounts between the parties. The original complaint alleged that on or about the 1st of January, 1882, the plaintiffs, who were then partners under the firm name of Best Bros., entered into an agreement of partnership with the defendant, Pike, for the purpose of purchasing and cutting pine timber and sawing and selling the same, under which agreement it was the duty of the plaintiffs to cut and bank the timber, and the duty of the defendant to saw it into lumber and sell it, it being agreed that the work of cutting and banking should be set off against the sawing and selling. The complaint further alleged that business was carried on under this agreement during the season of 1882, and for some time thereafter, but that the business has long since been completed, and that the defendant neglects to account for the moneys received by him on account of the partnership. The complaint contains the usual prayer for accounting and dissolution of the firm. The defendant, answering this complaint, admitted the co-partnership, and submitted an account of the lumber disposed of by him, and also set up two counterclaims amounting in the aggregate to about $43,000. The action was referred on these pleadings to A. E. Dixon to hear, try, and determine the same, and was thereafter tried by such referee, who made a report finding in favor of the plaintiffs and against the defendant in the sum of $13,579.07, which report was confirmed, and judgment rendered thereon October 16, 1890. Afterwards, and upon cause shown, this judgment was set aside, and the action was rereferred by an order in terms as follows: “This matter having come before the court upon motion of Tompkins & Merrill to appoint a referee in place of Hon. S. H. Clough, heretofore appointed, and who has declined to act as such referee, J. J. Miles, Esq., appearing for defendant, and agreeing to the reference, but asking that the reference be to hear, try, and determine; Tompkins & Merrill, as attorneys for the plaintiffs, asking that it be referred to a referee to take an account of the transactions between the parties: Ordered, that the above action be and is hereby referred to Joseph Cover, Esq., to take an account between the parties herein, and report the same to the court without unnecessary delay.” Before the taking of testimony was begun amended pleadings were served and filed. By the amended complaint it was alleged that a partnership for cutting and manufacturing the lumber was made between the parties substantially as charged in the original complaint, and that the accounts of said partnership are still unsettled. A second cause of action appears in the amended complaint, claiming $1,697.37 due to plaintiffs from the defendant on account of goods sold and labor performed. To this amended complaint an amended answer was served, in which the defendant denied that he ever entered into partnership with the plaintiffs, but alleged that about November 1, 1881, he being the owner of a sawmill and the plaintiffs being the owners of certain stumpage, it was agreed that the plaintiffs should cut, haul, and bank the logs, and the defendant should saw and manufacture the same into lumber, and sell the same, and, after deducting his costs and expenses and advances and interest on the same, the balance, if any, should be equally divided between the plaintiffs and the said defendant. Under this agreement, the answer alleges, the plaintiffs in the winters of 1881 and 1882 cut and banked about 4,000,000 feet of logs, and sold and received for same $45,108.34; that the defendant paid out and expended in the purchase of additional stumpage and costs, charges and expenses for the manufacturing, $38,000. Said answer also contained two counterclaims,--one for goods and labor, amounting to $18,929.22; and another for failure to cut a million feet of the logs contracted to be cut, for which damages to the amount of $15,000 are claimed. A reply was served, denying the allegations of the answer. When the parties appeared before the referee to commence the taking of testimony, the following proceedings took place: “The defendant's counsel, on reading the order, stated to the referee, after consultation, that they understood this order refers this case to the referee to take accounts between the parties, and to make a statement thereof, and also to take the evidence of the respective parties and their witnesses, and report the same to the circuit court; and that they do not understand that it is a reference to find the facts in this case, and that, if it were claimed to be the latter, they should object to the proceeding under this form of an order, because, if it is a reference to find and report the facts, the order should so state. Tompkins & Merrill, for the plaintiffs, stated that they understood that the referee should find as to the facts so far as it is necessary to take and report an account between the parties. Thereupon the referee suggested to counsel that he would take the testimony, and refer the question of the construction of this order to the court. Counsel for defendant objected to proceeding under any theory of this case, except to take the accounts and evidence, and report the evidence to the court, because the circuit court had no authority to make this order in the present form, and the counsel are wholly in the dark as to its construction, and they proceeded to take the testimony under the intimations of the referee to leave the order to the court to determine its construction.” After the close of the trial the referee made his report, in which he made certain findings of fact in which he found that the plaintiffs and the defendant entered into the partnership substantially as alleged in the complaint; and he further found in detail the amount contributed by the plaintiffs and defendant to such partnership, and the amounts due from the personal accounts set up in the pleadings. He also attached to his report a statement of account between the parties, wherein it appears that the plaintiffs' total credits amounted to $29,284.80 and their debits to $20,495.33, leaving a balance due to the plaintiffs from the defendant of $8,749.47, with interest from October 1, 1884. Motions were made on this report by both parties, the plaintiffs moving...