Powers v. Large

• Citation: 75 Wis. 494,43 N.W. 1120
• Parties: POWERS v. LARGE ET AL.
• Decision Date: 03 December 1889
• Court: United States State Supreme Court of Wisconsin

75 Wis. 494

43 N.W. 1120

POWERS

v.LARGE ET AL.

Supreme Court of Wisconsin.

Dec. 3, 1889.

Appeal from circuit court, Grant county; GEO. CLEMENTSON, Judge.

Action on judgment note by Lyman A. Powers against Frank L. Powers. Judgment was entered for plaintiff, and, after issue and levy of execution, Large & Amsden intervened, claiming that the proceeds should be applied on a judgment recovered by them against Powers & Stone. Judgment for intervenors, and plaintiff appeals.John D. Wilson, ( W. E. Carter, of counsel,) for appellant.

Clark & Mills, for respondents.

ORTON, J.

The findings of the court on the material questions of fact in this case are substantially as follows: In March, 1885, Frank L. Powers gave to his father, the appellant, his judgment note for $3,240. In February, 1886, judgment was entered upon said note, and an execution was issued thereon, and levied upon a stock of goods in the possession of Frank A. Powers, as claimed by the appellant, or in possession of Powers & Stone, as claimed by the respondents. The respondents, Large & Amsden, caused an attachment to be issued against said Powers & Stone, and to be levied on the same goods, subject to said execution, and subsequently recovered judgment against said Powers & Stone in said attachment suit, and execution was thereafter issued thereon, and returned “No property found.” In the mean time, the goods were sold under the execution of the appellant, and the proceeds deposited in court, and the said respondents, by their petition as intervenors, asked that said moneys be applied to the payment of their judgment, the fund being sufficient for that purpose. It was further found that Powers & Stone both held themselves out as partners as early as October, 1885, and afterwards, and purchased goods of divers persons as such, among whom were the said respondents, and held themselves out as such partners in the ownership of said goods and business. The appellant never disclosed to any who sold said Powers & Stone goods, including the respondents, that he held said judgment note, and he knew that said Powers & Stone were holding themselves out as partners to those who sold them goods and others, and knew the condition of said partnership, and that it was making such purchases from the respondents and others, and never disclosed to any of its customers that he held said note. The firm of Powers & Stone, and each and both of them, are insolvent, and said goods constituted their entire property. The facts are more fully stated in the petition in the case which came to this court by appeal from the order overruling the demurrer to the same, and reported in 69 Wis. 621, 35 N. W. Rep. 53.

It is strenuously contended by the learned counsel of the appellant that these controverted facts were not proved. It would be useless to specially refer to the testimony to determine whether these findings in respect to such facts are sustained by it. It is sufficient that there was evidence to support them. The weight and credibility of such evidence the circuit court had better facilities of determining, than this court can have from the mere record thereof. There was evidence that the said Powers & Stone did hold themselves out as copartners to the respondents and others, and purchased goods as such, and that the said appellant knew of it, and...