Dahlman v. Foster

• Decision Date: 09 September 1882
• Citation: 13 N.W. 264,55 Wis. 382
• Parties: DAHLMAn. v. FOSTER, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

55 Wis. 382

13 N.W. 264

DAHLMAn.

v.FOSTER, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed September 9, 1882.

Appeal from circuit court, Milwaukee county.Nath. Pereles & Sons and Cottrill, Hanson & Brown, for respondent.

Cotzhausen, Sylvester & Scheiber, for appellants.

ORTON, J.

This action was brought upon a promissory note signed by J. S. Mabbett & Co., and it was alleged in the complaint that such firm consisted of the defendants, George Foster and Joseph S. Mabbett. The defendant Foster, in his answer, denied the partnership. To prove the partnership, the records and judgment roll in several mechanics' liens and other suits, in which the said Foster and Mabbett were parties, but in which neither the payees nor holders of the note in suit were parties or privies, were introduced in evidence on behalf of the plaintiff, by which records it appeared that the defendant Foster had made a statement under oath, at different times before and about the time this note was given, that he and said Joseph S. Mabbett were partners.

There was some evidence on the part of the plaintiff tending to show that said Foster had otherwise acted as a partner with said Mabbett. It was not shown that any of the payees or holders of the note had ever had any knowledge of said records or statements, under oath, before the note was given or negotiated. The defendant Foster offered to show that his sworn statement in said records, that he was a partner of J. S. Mabbett, originated from a mistake, and through his ignorance of what constituted a copartnership, and offered to explain the same, which the court refused to allow him to do, in the following language and writing: “I don't think it is legitimate for you to change the legal nature of the act, which is done beyond dispute; you must take it with its legal consequences. It speaks for itself. I think it is a solemn admission, and we won't inquire into it.” The defendants' counsel said to the court, “You mean by solemn, conclusive?” and the court replied, “Yes, sir.”

There had been some other evidence in behalf of the defendant Foster tending to show the manner in which the business of the pretended firm had been conducted, with a view of showing that he was not a partner with Mabbett, and some evidence of the real contract between them, with the same view. The defendant Mabbett, as a witness for the defendant Foster, was asked by his counsel, “Had George Foster, in the month of June, 1874, or any other time thereafter, any interest in the business, except as an employe?” and he answered, “That is all, sir.” On motion of defendants' counsel this evidence was stricken out. The defendants' counsel then asked the court, “Am I to understand that all the evidence on the part of the defense as to the actual agreement between Mabbett and Foster shall be ruled out?” and the court replied, “Yes, sir.” The court thereupon directed the jury to render a verdict for the plaintiff for the amount of the note. It would seem, from remarks made by him in connection with these rulings in respect to the legal effect of such admissions or statements of a partnership in these various cases, the learned judge who tried this case rested them upon the doctrine of estoppel, holding that in all cases thereafter between any and all parties the defendant Foster would be estopped from denying their truth or explaining them, even, for he said: “Now the question is, in view of that proof, what is the effect of it in law? It might have been made...