Serfling v. Andrews
| Decision Date | 27 February 1900 |
| Citation | 81 N.W. 991,106 Wis. 78 |
| Parties | SERFLING v. ANDREWS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Calumet county; George W. Burnell, Judge.
Action by John Serfling against Dale Andrews. From a judgment in favor of plaintiff, defendant appeals. Reversed.
The complaint sets out that the plaintiff was a cheese maker; that as such he hired out to one Holzschuh for the season of 1898; that he leased a certain dwelling house from the defendant for one year; that he removed his household effects from Sheboygan to Sherwood, in Calumet county, but the defendant refused to give him possession of the rented premises; that he was unable to secure another house, and was compelled to cancel his contract of hiring and remove elsewhere; and that he suffered damage in the sum of $190. The answer admits that there was talk about the leasing of the house, but alleges that it was conditional upon the defendant's being able to secure possession from the tenant then in possession, and denies the other allegations of the complaint. On the trial the plaintiff was permitted to prove a partnership with Holzschuh by which they were to operate the cheese factory for the season of 1898, and that, by reason of his inability to secure the house in question, he had to relinquish the business. Considerable testimony was given, against defendant's objection, as to the profits of the business; and the court instructed the jury that the plaintiff was entitled to recover $1 that had been paid on the lease, $11.41 freight on his household goods from Sheboygan to Sherwood, $6 freight on his goods to Appleton, and for the profits of the cheese factory, less what he earned elsewhere. The jury brought in a verdict for plaintiff for $212.90. Plaintiff's counsel remitted therefrom $22.90, and judgment was entered for plaintiff for $190 and costs. A motion for a new trial was denied, and the defendant has appealed.James Kirwan and Nash & Nash, for appellant.
J. E. McMullen, for respondent.
BARDEEN, J. (after stating the facts).
The court seems to have proceeded upon an entirely erroneous idea as to the rule of damages applicable to this case. The complaint merely sets out the making of the lease, the plaintiff's business, a hiring out to Holzschuh for the season of 1898, a removal from Sheboygan to Calumet county, a failure of defendant to deliver possession of the leased premises, his inability to secure another house, a consequent cancellation of his contract of hiring, and a general allegation of damage. It is not alleged that defendant ever had any knowledge of plaintiff's business or of the contract of hiring. The proof shows, without dispute, that plaintiff and Holzschuh were to be partners in the operation of the cheese factory. Holzschuh was to furnish the factory and look after securing the milk. Plaintiff was to do the work in the factory, and the profits and losses were to be shared equally. The usual test of a partnership is whether there is a community of interest in the profits and losses of the business. Any arrangement which gives the parties such a community of interest constitutes them partners. Whitney v. Ludington, 17 Wis. 140;Sprout v....
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