Briere v. Searls

• Decision Date: 12 December 1905
• Citation: 105 N.W. 817,126 Wis. 347
• Parties: BRIERE ET AL. v. SEARLS ET AL.
• Court: Wisconsin Supreme Court

126 Wis. 347

105 N.W. 817

BRIERE ET AL.

v.SEARLS ET AL.

Supreme Court of Wisconsin.

Dec. 12, 1905.

Appeal from Circuit Court, Wood County; James O. Neill, Judge.

Action by Charles Briere and others against Jacob Searls and others. From the judgment rendered, both parties appeal. Reversed.

Action for an accounting. The plaintiffs' claim was this: They as one party, the defendant Gaynor-Blackstone Cranberry Company as another, and defendants Searls as Searls Bros. as a third, all being producers of cranberries in 1899, in aid of the economical marketing of their berry crops formed an association under the name of the Cranberry Growers Union to act as a sales agent for its members. Defendant Taylor was chosen as secretary and plaintiff Charles Briere was chosen as president of the association, each to perform the work appropriate to his position without compensation. Jacob Searls was employed at a per diem of $2.50, per day to solicit orders, it being understood and agreed that all the business should be done in the name of the union. For incidental expenses such as stationery, labels to be placed on barrels of berries, charges and expenses in shipping out samples of berries, and charges for obtaining commercial reports as to customers, it was agreed that each party should contribute in the proportion which the berries produced by him bore to the amount produced by all parties to the union. Each member paid in money for an expense fund according to such ratio. It was further agreed that each member should furnish the union a sample of his product and fix his selling price therefor, and that upon an order being taken for cranberries by sample it should be filled from the particular product represented by such sample, and that the proceeds when received by the union should be paid over to the person filling the order. Each member reserved the right to sell any or all of his own product. Operating under such agreement the union sold of plaintiffs' berries 843 barrels for $4,517.10, $3,484.26, of which was collected by the union. The expenses of the association were $1,640. Plaintiffs' proportion with $14.40, of special expenses incurred in their behalf, less $100, paid by them into the expense fund was $362.97. The net amount collected from sales of plaintiffs' berries was $3,101.29, of which they have only received $2,109.71, leaving a balance due them of $991.56. Such balance was paid by Taylor to himself and other members of the association as money belonging to them.

The claim of defendants Jacob Searls and Andrew Searls was substantially the same as that of the plaintiffs' except they denied having received any money belonging to plaintiffs. They claimed in respect to the business of the association done for them, that the union handled 1,097 barrels of their berries, selling the same for $5,764.15, all of which sum was collected except $801.64; that their proportion of the expenses, less the amount paid by them into the expense fund, was $491.28; that they received from the union $3,986.98, leaving a balance due of $484.14, which remained in the hands of the defendant Taylor as secretary.

The claim of the other defendants was this: The three parties alleged to have made a mere association to act as a selling agent in fact formed a co-partnership under the name of the Cranberry Growers Union for the purpose of buying and selling cranberries. A secretary and president were appointed to perform services without compensation, and a solicitor was employed to take orders for the sale of cranberries at a per diem of $2.50, as claimed by plaintiffs, and in addition to the employment of Jacob Searls as such a solicitor Andrew Searls was also employed. By the partnership agreement it was stipulated that the profits and losses of the business should be shared by each member in the proportion which the amount of berries produced by him bore to the total amount produced by all the members of the union in the year 1899. It was further agreed that each member might sell his berries to the union in whole or in part or sell to outside parties at his pleasure, the profits and losses of the union business, however, to be shared according to their respective interests, determined as aforesaid. The union pursuant to the partnership agreement purchased and sold berries produced by its members and by outside parties at a loss in the aggregate of $7,789.21. The proportionate amount of such loss as to each member was as follows: Gaynor-Blackstone Cranberry Co. $2,967.34; plaintiffs $2,225.50; Searls Bros. Co. $2,569.42. The Searls Bros. Co. received from the union $718.40, in excess of the amount actually coming to them. They owe the union that amount, while it is indebted to Gaynor-Blackstone Co. in the sum of $487.17, and the Briere-Pomainville Co. in the sum of $266.09.

The claims of the respective parties were set forth in complaint and answers by proper allegations.

The issues between the parties were decided by the trial court, as follows:

1. August 23, 1899, plaintiffs as one concern, the defendants Gaynor-Blackstone Cranberry Co. as another, and the defendants Andrew Searls and Jacob Searls as a third, were producers of cranberries in Wood county, Wisconsin.

2. Between August 23 and August 26, 1899, plaintiffs and defendants as Searls Bros. Co., and the defendant Gaynor-Blackstone Cranberry Co. made a co-partnership agreement under the name of the Cranberry Growers Union for buying and selling cranberries. The agreement was wholly oral. T. A. Taylor was selected as secretary, Charles Briere as president, and Charles Briere, Andrew Searls and T. A. Taylor as an executive committee.

3. It was agreed that the expenses of the union should be borne as follows: 12 parts by the plaintiffs, 14 by Searls Bros. Co. and 16 by the Gaynor-Blackstone Cranberry Company.

4. Taylor acted honestly as secretary, bookkeeper and treasurer of the union in all of its business transactions, and with full knowledge of the members thereof. Defendant Gaynor was in no manner connected with the union, except as he and Taylor represented the Gaynor-Blackstone Cranberry Co. in the formation thereof, and at meetings of the association.

5. The union bought and sold cranberries and did other acts incident thereto during the selling season of 1899 for a part of such season, and then by mutual consent ceased doing business. The accounts of the association have never been settled.

6. In the dealings with the union Jacob and Andrew Searls, sometimes one and sometimes the other, represented Searls Bros. Co., and acted as salesmen. Plaintiff Briere represented plaintiffs. Taylor represented Gaynor-Blackstone Cranberry Co. and acted as secretary and treasurer, and Briere, Andrew Searls and Taylor acted as executive committee.

7. The business of the union was conducted at a loss of $7,773.90.

8. The union purchased berries from its members and credited the purchase accordingly on its books. It did not handle the berries of any of them as agent for the producers, but handled the same as its own property.

9. The union books were open to inspection by its members at all times, and no question was raised as to their correctness until an ineffectual attempt at settlement occurred in April 1900.

10. There is due from the Cranberry Growers Union to plaintiffs $259.07, to the Gaynor-Blackstone Cranberry Co. $482.01, and there is due from the Searls Bros. Co. $703.28, and there is an item due from the bank to the union of $37.80, making the total available assets $741.08.

11. It was agreed upon the trial that if it was decided that the agreement between the parties was that of a partnership the losses should be borne in the proportion of 12 parts to the plaintiffs, 12 to defendants Searls Bros. Co., and 16 to defendant Gaynor-Blackstone Cranberry Co.

On such facts the court held this: The Cranberry Growers Union in all its business transactions was a co-partnership and the accounting should be made accordingly. The Gaynor-Blackstone Cranberry Co. is entitled to judgment against the defendants Jacob Searls and Andrew Searls for $444.21, as the sum due it from the union, less the money in the Wood County National Bank. The plaintiffs are entitled to judgment against the defendants Jacob Searls and Andrew Searls for $259.07, and the bank should pay into court the money due from it to the union, the same to be thereupon turned over to the Gaynor-Blackstone Cranberry Co. in part satisfaction of the sum found due it. Defendants Gaynor and Taylor should be dismissed from the action without costs.

Judgment in accordance with such conclusions was ordered without costs to either party. Judgment was thereupon entered accordingly. Plaintiffs and defendants Jacob Searls and Andrew Searls separately appealed.

Goggins & Brazeau, for plaintiffs Charles Briere and others.

H. Wipperman, for defendants Jacob Searls and others.

B. M. Vaughan, for defendants T. A. Taylor and others.

MARSHALL, J. (after stating the facts).

The main contention of appellants' counsel is that the finding as to the members of the union having made a partnership and no other agreement and that all business transacted as regards handling berries produced by members, as well as regards handling outside berries, was within the scope of such agreement, is contrary to the clear preponderance of the evidence. We shall not encumber this opinion by referring in detail to the evidence on that question. It is believed that careful study requisite to a thorough understanding of and such appreciation of the weight that should be given to the evidence, direct and circumstantial, as one can reasonably acquire circumstanced as the members of an appellate tribunal necessarily are, has been devoted thereto.

We are unable to reach the conclusion that the decision of the trial court is barren of any finding of fact on the issue as to whether there was or was not a partnership agreement, precluding a decision on the...