Ott v. Boring

• Decision Date: 19 February 1907
• Citation: 110 N.W. 824,131 Wis. 472
• Parties: OTT v. BORING.
• Court: Wisconsin Supreme Court

131 Wis. 472

110 N.W. 824

OTT

v.BORING.

Supreme Court of Wisconsin.

Feb. 19, 1907.

Appeal from Circuit Court, Ashland County; E. B. Belden, Judge.

Claim by Eli Ott against C. O. Boring, as executor of the estate of Franklin J. Pool, deceased. The claim was disallowed by the county court, and, from a judgment of the circuit court in favor of defendant on appeal, plaintiff appeals. Reversed and remanded.

A claim filed in county court against the estate of said decedent, there disallowed, and appealed to the circuit court, where the case was tried without a jury. It appeared, substantially without dispute, that in 1887 the deceased was engaged in business at Chicago as a dry goods merchant, and proposed removing his residence and business to Ashland, Wis. He had a stock showing, by inventory, about $19,000, which, in conference with the plaintiff, was deemed to be worth approximately $10,000. He wrote the plaintiff on October 17, 1887, the following proposal: “If you will go with me to Ashland and remain with me until I shall be able to draw from the concern the sum of ten thousand dollars besides keeping the stock up and paying personal and store expenses I will pay you fifteen dollars per week, and at the end of such time as I may be able to draw from the business as above stated, I will give you a one-fourth interest in the store. This is intended as additional pay, and you are expected to use your best endeavor at all times to make the store the greatest success possible.” Plaintiff accordingly went with deceased to Ashland where a dry goods business was established in the name of F. J. Pool, and so conducted thence forward to the time of Pool's death in July, 1904. Plaintiff drew, through all that time, compensation of $15 a week, except that, from some date in 1900, he was paid $17.31 a week--by what arrangement is not shown by reason of exclusion of plaintiff's testimony. He retained at all times, the written proposal above stated, but there is no evidence that subject was ever referred to between him and Pool. The business management was entirely with Pool, but plaintiff was distinguished from other clerks by being placed in command thereof whenever Pool was absent, and by having the duty generally of supervising all details arising in the sale of goods. He was also distinguished by the fact that he, alone, carried a key to the store, opened it in the morning and frequently fastened it up at night. The business prospered, and was steadily enlarged in volume so that the net balance of book assets appearing by the inventory of 1889 was $29,000; in 1890 $37,000; in 1896 $19,000; in 1897 $71,000, and thence increased until at the time of Pool's death such balance was $119,000; the small amount shown in 1896 being due to a fire which destroyed a large part of the stock on hand, for which, however, some $50,000 of insurance was collected and entered into the footing of the following year, 1897. Pool never withdrew any money from the business, except trifling amounts for current family expenses, which were charged to him on his books, and goods from the store taken and used by his family, for which no charge whatever was made, until about the year 1900, when he purchased some real estate in Ashland, not for the purposes of the business, and drew out $2,500 to pay therefor. After the recovery of the insurance money and in 1896, he loaned to, or deposited with, J. V. Farwell & Co., from whom he had always bought large quantities of goods, the sum of $15,000, entering the same as a charge on the books of the company and taking a demand due bill therefor, which was at all times treated as a business asset. This loan remained up to the time of his death. Immediately after Pool's death plaintiff, by virtue of the opportunities of his position, was in apparent physical possession of the store and property, and notified the widow and adult son that he claimed to be in lawful possession by virtue of his one-quarter interest therein in pursuance of the writing above set forth. The attorneys for the respective parties conferred, and, in order to avoid unseemly clash and injury to the business, plaintiff surrendered up the manual possession to the representatives of Pool upon an agreement that no rights should be lost thereby, and thereupon presented claim to the county court which, as amended in pleading in the circuit court, is somewhat ambiguous. It is, apparently, a claim for $30,000 in money as the value of a one-quarter interest in the entire assets of the business; such one-quarter having been taken and being held by the representatives of Pool. The court found that, as early as the inventory of 1889, Pool was able to draw from the concern the sum of $10,000, besides keeping the stock up and paying the store and personal expenses, and that more than six years before his death he did draw from the concern more than $10,000, referring to the loan to Farwell, and, as conclusion of law, that, if ever valid, the claim of the plaintiff is barred by the statute of limitations. In an opinion filed by the trial court some other grounds of disallowance are stated. Judgment was thereupon entered disallowing plaintiff's claim, from which he brings this appeal.Sanborn, Lamoreux & Pray (Burr W. Jones and H. B. Walmsley of counsel), for appellant.

Tomkins, Tomkins & Garvin, for respondent.

DODGE, J. (after stating the facts).

1. The first position contended for by respondent, and adopted by trial court, in an opinion filed, was to the effect that the evidence did not disclose an acceptance by the plaintiff of the written proposition quoted in the statement of facts, except as to the $15 per week compensation. The evidence on the subject is that the plaintiff received this proposition and, immediately thereafter, commenced and has continued to comply in all respects with the terms thereof on his part. From such facts no reasonable inference can be drawn that his intention was to accept only one part of the tendered compensation to him for such acts and to reject the other part. If the acts of the plaintiff in going to Ashland and associating himself with Mr. Pool were done in response to this proposition, they are plenary proof of the acceptance thereof according to its terms, in the absence of any evidence to show a contrary purpose or understanding.

2. There is considerable confusion in the contentions made by different counsel for appellant as to the force and effect of the contract resulting from Mr. Pool's written proposition and plaintiff's acceptance thereof. At one moment they seem to contend that a partnership was immediately created thereby, and at another that it was a mere employment with a promise of additional payment at some indefinite date in the future, but whether that additional compensation was to be in the form of a partnership, or a mere transfer of title to one-quarter of the property in the business, they are not very clear, nor, indeed, whether the contract was self-executing so that at some time an interest did, by force of law, vest in plaintiff, or some conveyance from Pool was necessary. After a careful examination of the writing in the light of the conduct of both parties, which certainly indicated complete concurrence by them in their understanding of their relations, we think it plain that no co-partnership was originally formed between them. Mr. Pool's agreement was that some time in the future, in a certain contingency, “I will give you a one-quarter interest in the store,” and the conduct of the parties at all times was consistent with the understanding that Mr. Pool was the owner of this business, exercising full autonomy and control thereover as owner, and that the time had never come when he had executed that promise by giving or transferring any part of the ownership thereof to the plaintiff. This view, of course, might not be inconsistent with the idea that some equitable rights had existed in the plaintiff at all times such as to enable him to protect against unreasonable or destructive conduct upon the part of Pool in managing the business so as to impair the probability that the time would ever come when plaintiff would be entitled to an interest, or would impair the value of that interest when such time did come, thus imposing a trust or fiduciary quality upon Pool's title and management. This right might well exist without any actual ownership having yet been acquired. Suffice it to say that it is obvious that Mr. Pool's management never did at any time arouse disapproval by the plaintiff, but that he seems at all times to have had entire confidence in the wisdom and fairness thereof. Having concluded that this was a contract that at some time Mr. Pool was to transfer to plaintiff a share either in the property or business, the next question of construction is when that duty was to be performed, so that, if the transfer were not made, Mr. Pool was in default, and the plaintiff had a present complete cause of action. The proposition itself prescribed the time as “when I shall be able to withdraw from the concern the sum of $10,000 besides keeping the stock up.” The view contended for by the respondent, and adopted by the trial court, was that, whenever that business had so increased that it was possible to withdraw $10,000 and leave a stock equal to that existing at the time of the contract, the agreement had been fully performed by the plaintiff, and the transfer was due. We are persuaded that this is altogether too narrow a view of the situation. These parties, or rather Mr. Pool, was about to establish a business in Ashland, obviously with the expectation of a successful development thereof. Naturally, he hoped that the new city and surrounding country would grow in population, and, as phrased in the very proposition, the purpose of associating plaintiff with himself was “to make the store the greatest success possible.” Obviously that was not to be accomplished...