Bopp v. Fox

• Decision Date: 30 June 1872
• Citation: 1872 WL 8244,63 Ill. 540
• Parties: CATHARINE BOPPv.THOMAS D. FOX et al.
• Court: Illinois Supreme Court

63 Ill. 540

1872 WL 8244 (Ill.)

CATHARINE BOPP

v.THOMAS D. FOX et al.

Supreme Court of Illinois.

June Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Clinton county; the Hon. SILAS L. BRYAN, Judge, presiding.

Mr. F. A. LIETZE, for the appellant.

Mr. WM. WINKELMAN, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a petition in equity, on the part of Catharine Bopp, for the assignment of dower in the real estate of her deceased husband, Louis Bopp.

The claim of dower is in the one undivided one-fourth part of certain premises, by virtue of a conveyance thereof to Frederick Weaver, John Schuchman, Henry Burmeister and Louis Bopp, on the 8th day of March, 1865. The defendants set up in resistance to the claim that they were purchasers of the whole of the premises at a receiver's sale thereof, made on the 13th of August, 1870, under an order of court in a certain suit for the dissolution of a co-partnership between the said Weaver, Schuchman, Burmeister and Bopp, in which suit the said Weaver and Burmeister were complainants, and said Schuchman and Bopp were defendants; and that the said premises were bought with partnership funds for partnership purposes.

The only questions made on the record are, whether the premises were so purchased with partnership funds for partnership purposes, and if so, whether they were subject to the claim of dower.

It appears from the proofs, that, about two weeks previous to the purchase of the land, Weaver, Schuchman, Burmeister and Bopp entered into a verbal agreement to go into partnership, to buy the land, and to erect a flouring mill thereon for the purpose of carrying on the milling business; that it was understood they would afterwards enter into articles of co-partnership, which they did about two months after the purchase, assuming the firm name of John Schuchman & Co., under which they carried on business unsuccessfully until the fall of 1869; that in pursuance of said verbal agreement they made the purchase, $3000 being paid down and the balance in about four or six weeks afterwards. Each paid a proportionate part of the purchase price, each one, on the first payment, paying $750 down. The deed was made to them all in their individual names. They commenced building the mill about a month after the purchase, and the money for the purpose was paid by them as the mill progressed; the cost of the mill was about $40,000. At the time of the decree of dissolution of the partnership by the court the liabilities of the partnership exceeded its assets by $12,000 or $13,000, of which amount Louis Bopp was indebted to the company in the sum of about $3000. It is first objected that the payments for this land were not made out of partnership funds, and that there was no partnership in existence at the time of the purchase; that no partnership was formed until the written articles of co-partnership were entered into.

Written articles were not necessary to constitute the partnership; it might as well exist under a verbal agreement.

As we regard it,...