Goodsitt v. Richter

• Decision Date: 06 November 1934
• Citation: 257 N.W. 23,216 Wis. 351
• Parties: GOODSITT ET AL. v. RICHTER ET AL.
• Court: Wisconsin Supreme Court

216 Wis. 351

257 N.W. 23

GOODSITT ET AL.

v.RICHTER ET AL.

Supreme Court of Wisconsin.

Nov. 6, 1934.

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Circuit Judge. Reversed, with directions.

The action was commenced on December 16, 1930, by Lawrence M. Goodsitt, Anna R. Miller, assignee, plaintiffs, to recover damages for breach of a contract claimed to have been made by R. E. Oberst, Arthur W. Richter, and William A. Schroeder, defendants, as joint adventurers. The case was tried to the court, and findings of fact and conclusions of law were filed, in which it found as a fact that the defendants were joint adventurers in the purchase of certain real estate in the city of Milwaukee, and that as such joint adventurers defendants became indebted to the plaintiff in the sum of $3,933.02, and that the indebtedness is overdue and wholly unpaid. The conclusion of law was that plaintiff is entitled to judgment in this sum with interest and costs. Judgment was entered upon these findings on October 21, 1932. The defendant Richter appeals. Such facts as are material will be stated in the opinion.

George Affeldt and A. W. Richter, both of Milwaukee, for appellant.

Fish, Marshutz & Hoffman, of Milwaukee (F. C. John and William H. Voss, both of Milwaukee, of counsel), for respondents.

WICKHEM, Justice.

The defendant's principal contentions are: First, that the evidence does not sustain the finding of a joint adventure; and, second, that the alleged agreement of joint adventure would be void under the statute of frauds. While defendant makes several other contentions, the foregoing may well be considered at the outset, since both require an examination of the facts in some detail.

On December 2, 1925, one Ellison contracted with the defendant Oberst to sell him a ninety-nine year lease in the city of Milwaukee, for the sum of $54,500. The written evidence of this agreement was signed by Ellison and by Oberst, and purports to be an agreement between these two parties only. On December 8, 1925, a more elaborate instrument, specifically setting forth the rights and obligations of the parties, was signed by Ellison. In this instrument Oberst is treated as the sole assignee of Ellison's rights in and to the ninety-nine year lease. The agreement acknowledges the down payments and recites Ellison's agreement to accept the promissory notes of Oberst for portions of the balance. By assignment dated December 9, 1925, Ellison assigned the amounts due him under this contract to the plaintiff Goodsitt. While bearing date of December 9th, there is some evidence that this agreement was delivered later than its purported date. Ellison had a prior contract with one Thiermann for the purchase of the leasehold, and Thiermann had a contract with the Modern Housing Corporation, the owner, for its purchase. After long negotiations and some litigation, a settlement was effected between Thiermann, Ellison, Oberst, and the Modern Housing Corporation. On January 11, 1926, the latter corporation conveyed the leasehold to Oberst. On December 16, 1925, Oberst assigned one-third interest each to the defendants Schroeder and Richter. Shortly thereafter Oberst conveyed the leasehold to the Franklin Building Company, a Wisconsin corporation, and received from the corporation an agreement to indemnify him on account of any liability on the leasehold. On February 6th, plaintiff Goodsitt started an action in the circuit court of Milwaukee county against the three defendants in this action and John T. Ellison, claiming a vendor's lien on the leasehold. The demurrer to the complaint was overruled in the circuit court. Upon appeal to this court, the order was reversed and the cause remanded, with directions to sustain the demurrer. The remittitur was filed in the circuit court May 26, 1927, and no further proceedings were had in that action. The present action was commenced by plaintiff upon the theory that, at the time of the assignment on December 2d, Schroeder, Richter, and Oberst were joint adventurers; that Oberst, in taking title, was acting for and on behalf of the defendants Richter and Schroeder, as well as on his own behalf. The court sustained the finding that the relationship of joint adventurers existed between defendants.

[1] The first contention of defendant goes to the sufficiency of the evidence to sustain this finding. We deem it unnecessary to engage in an extensive review of the evidence. It suffices to say that the record sustains the finding that Richter, Schroeder, and Ellison agreed orally between themselves that each should have one-third interest in the leasehold, as well as one-third of the profits in the adventure, and that each was to pay one-third of the costs and to assume one-third of the liability. The evidence further supports the conclusion that Oberst was to take title on behalf of his coadventurers. Nor is there any question of the power of one joint adventurer to bind his associates in matters within the scope of the joint enterprise. Fischer v. Meiroff, 192 Wis. 482, 213 N. W. 283;Reinig v. Nelson, 199 Wis. 482, 227 N. W. 14.

[...