Hubbard v. Ferry

• Decision Date: 12 November 1909
• Citation: 123 N.W. 142,141 Wis. 17
• Parties: HUBBARD v. FERRY.
• Court: Wisconsin Supreme Court

141 Wis. 17

123 N.W. 142

HUBBARD

v.FERRY.

Supreme Court of Wisconsin.

Nov. 12, 1909.

Appeal from Circuit Court, Eau Claire County; John K. Parish, Judge.

Action by Martin B. Hubbard against John G. Ferry. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff and defendant were equal partners in a retail jewelry business from October 1, 1900, until March, 1906; defendant being the active manager of the business, and plaintiff, who was a practicing lawyer, taking no part therein. At the latter date plaintiff sold out to the defendant, giving him a written bill of sale conveying all his interest in the “stock, fixtures and accounts.” Defendant continued the business under the same name of J. G. Ferry & Co. Throughout most of the partnership period, and subsequently, one Jackson, a jeweler, watchmaker, and engraver, was employed as substantially the only assistant in running the business. In March or April, 1907, the defendant became suspicious of Jackson, and consulted with the plaintiff in regard to steps that might be taken to discover any peculations of his, and to recover from him, defendant claiming that he so consulted plaintiff as an attorney at law, and plaintiff claiming to have understood that he consulted with him as a former partner interested in the recovery. Various suspicious circumstances having been discovered, defendant confronted Jackson with the charge, and obtained from him a confession that he had been embezzling property and money, and that such embezzlement had extended not only through the year after defendant had bought out plaintiff, but for a somewhat indefinite time prior thereto. Defendant obtained from him a return and surrender of certain property and $1,000 in money, all of which the court found to amount to $1,600, and gave an acquittance signed by firm name, after protest against one with his individual signature. He refused to account to plaintiff for any part thereof, except a reasonable attorney's fee. This action was brought praying reformation of the bill of sale from plaintiff to defendant so as to exclude any rights against Jackson which plaintiff might have, and to require defendant to account for one-half of any sums received by him in compromise of Jackson's liability to the firm. The court decided in plaintiff's favor, holding that the bill of sale should be so reformed, and that the sum of $1,600 received by defendant must be apportioned equally over the whole period of Jackson's employment, both by the firm, and afterwards by defendant, and accordingly rendered judgment in favor of the plaintiff for $661.94 and interest from the time of the commencement of the action, from which judgment the defendant appeals.Bundy & Wilcox, for appellant.

A. H. Shoemaker and James Wickham, for respondent.

DODGE, J. (after stating the facts as above).

It is in our view unnecessary to discuss the propriety of the reformation of the bill of sale. We deem that action unnecessary, and therefore immaterial. It would be doing great violence to the ordinary use of terms to consider...