Klein v. Valerius

• Decision Date: 30 January 1894
• Citation: 57 N.W. 1112,87 Wis. 54
• Parties: KLEIN v. VALERIUS ET AL.
• Court: Wisconsin Supreme Court

87 Wis. 54

57 N.W. 1112

KLEIN

v.VALERIUS ET AL.

Supreme Court of Wisconsin.

Jan. 30, 1894.

Appeal from circuit court, Jefferson county; John R. Bennett, Judge.

Action by George Klein against N. P. and Paul Valerius. From a judgment for plaintiff on the report of a referee, defendants appeal. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

This action was commenced November 13, 1889. The complaint alleges, in effect, that the defendants have been partners since June 1, 1886, doing business at Watertown; that between June 17, 1886, and December 6, 1888, the defendants, at sundry and divers times, borrowed money of the plaintiff, and purchased horses and hay of him, which money was delivered by the plaintiff to the defendants, and which horses and hay were sold and delivered by the plaintiff to the defendants at their request, to the amount of $2,377.03, and demands judgment for the same with costs; that a bill of particulars is annexed to said complaint, covering the time between the dates named, amounting to $4,277.30, including $2,000 cash loaned to the defendants June 17, 1886, $300 cash loaned to the defendants June 28, 1886, and $800 cash loaned to the defendants September 10, 1886. The defendants, answering the complaint, admitted the partnership of the defendants, and allege, in effect, that between September 20, 1886, and April 1, 1889, they borrowed of the plaintiff $80, and bought of him one horse at the agreed price of $125, and also bought of him 16,325 pounds of hay at the agreed price of $8 per ton; but that long before the commencement of this action they repaid to the plaintiff the $80 so borrowed, and also paid him in full for said horse and said hay; and otherwise deny each and every allegation contained in the complaint. The answer also alleged, by way of counterclaim, in effect, that between November 1, 1886, and April 1, 1889, the defendants, as such partners, sold and delivered to the plaintiff, at his request, several pieces of property mentioned, and paid to him, or for his benefit, and at his request, several items of cash, amounting in the aggregate to $1,849.55. That no part thereof had been paid, except $271.28, and prayed judgment for the balance of $1,578.27, with a bill of particulars annexed to said answer. That thereupon the cause was referred to George Grimm, as sole referee, to hear, try, and determine this action, and of the issues therein. That said Grimm thereupon took the requisite oath, and, after hearing the witnesses, evidence, and proofs of the respective parties, and the arguments of their respective attorneys, pursuant to notice given, on June 11, 1892, the said referee made and filed his report, wherein he found as matters of fact, in effect: (1) That from May 1, 1885, to the commencement of this action, the defendants were partners, doing business at Watertown. (2) That the moneys described and charged in the plaintiff's bill of particulars, to wit, June 17, 1886, cash loaned to defendants, $2,000; June 28, 1886, cash loaned to defendants, $300; and September 10, 1886, cash loaned to defendants, $800,--were loaned by the plaintiff to the defendants, and were borrowed by the defendants of the plaintiff, with the mutual understanding that said sums should be repaid at the expiration of eight months. That the plaintiff so loaned to the defendants said money for the purpose of using the same in one certain exportation and importation of horses to be made by the defendants in the summer of 1886, with the mutual understanding that the same should be repaid at the end of the time necessary to complete such exportation and importation, which was fixed at eight months, and, in case said trip should be successful,--that is to say, profitable to the defendants,--then the plaintiff should receive a horse for the use of his money, and, if not successful, then he should receive nothing for its use. (3) That said trip was not successful, within the meaning placed upon that word by the parties, and that the defendants sustained a heavy loss, the amount of which the referee does not determine, as he deemed it immaterial. (4) That defendants were indebted to the plaintiff in the other sums set out in the plaintiff's bill of particulars, with the exception of the item under date of December 6, 1886, cash $300, which he finds was paid by the defendants with the Farlow note of $400, and the balance of $100 charged by defendants against plaintiff; and with the exception of the last item on the plaintiff's bill of particulars, under date of December 6, 1886, one stallion, $300, which he finds should be $275, and which he further finds was paid by the defendants with the Wassow note of $575, and the balance of $300 charged to the plaintiff by the defendants, making the aggregate sum owing the plaintiff by the defendants $3,677.30. (5) That the plaintiff is indebted to the defendants upon their counterclaim in the sum set out in their bill of particulars, to wit, the sum of $1,849.55, and that the final balance due the plaintiff from the defendants upon said accounts is $1,827.75. And as conclusions of law the referee found that the plaintiff is entitled to judgment against the defendants for the sum of $1,827.75, with interest thereon from May 10, 1887, at the rate of 7 per cent. per annum. That September 5, 1892, the plaintiff moved the court to confirm said report, and for judgment in favor of the plaintiff and against the defendants, in accordance with the findings therein; that at the same time the defendants moved the court to alter and modify said findings of fact and conclusions of law; and, after hearing of said motions respectively, and the arguments of counsel for the respective parties therein, and after duly considering the same, the court, on March 27, 1893, ordered, adjudged, and decreed that said report of the referee be, and the same is, in all respects confirmed, and judgment for the plaintiff and against the defendants is thereby ordered in accordance with said report and findings, with proper costs and disbursements; and thereupon, and on the same day, judgment was entered in favor of the plaintiff and against the defendants for the sum of $2,774.30, damages and costs. From that judgment the defendants bring this appeal.

Harlow Pease, for appellants.

W. H. Rogers and L. B. Caswell, for respondent.

CASSODAY, J., (after stating the facts).

The plaintiff married the mother of the defendants in 1868, when the defendants were quite young. The boys both left home before they were 16 years of age, and went to work for themselves. After they had accumulated a little money, and as early as 1884, the defendants, or one of them, went to Europe, bought some horses, shipped them to this country, and sold them. In the spring of 1885 they located at Watertown, and went into the business of buying and selling both imported and American horses, mostly for breeding purposes, but also on commission. The business of buying horses in Europe and shipping them to this country and selling them, by the defendants, appears to have been continued during the years 1886, 1887, and 1888. It is undisputed that the plaintiff from time to time let the defendants have money, to be used in such business. It would seem that some of the moneys so put in by the plaintiff were by way of a joint venture for a particular trip, whereby he was to have a certain share of the profits of the venture. It is conceded that the plaintiff let the defendants have, in June and September, 1886, the three items of cash mentioned in the findings, aggregating $3,100, to be used by the defendants in buying horses in Europe, and shipping to this country and selling the same. The defendants contend that the plaintiff so paid in the amount named in pursuance of an agreement or understanding that the defendants should put about $6,000 in for the same trip; and that, if the trip should turn out to be successful, then the plaintiff should have his money back, and one horse as his...