Severson v. Porter

• Citation: 40 N.W. 577,73 Wis. 70
• Parties: SEVERSON ET AL. v. PORTER.
• Decision Date: 04 December 1888
• Court: United States State Supreme Court of Wisconsin

73 Wis. 70

40 N.W. 577

SEVERSON ET AL.

v.PORTER.

Supreme Court of Wisconsin.

December 4, 1888.

Appeal from circuit court, Rock county; JOHN R. BENNETT, Judge.

Action by S. H. Severson and C. A. Robinson against J. K. P. Porter, in which I. G. Porter, to whom a general assignment for the benefit of creditors had been made by J. K. P Porter, William B. Porter, and J. B. Porter, was summoned as garnishee. Plaintiffs took issue on the answer of the garnishee denying liability, and appeal from an order granting him a discharge.John M Whitehead, for appellants.

I. C. Sloan, for respondents.

COLE, C. J.

If the assignment in this case is valid, the judgment of the circuit court discharging the garnishee must be affirmed. The assignment transferred to the assignee all the property of the assignors of every kind. It is objected that the assignment was made with the intent to hinder and defraud creditors, but there is an entire absence of testimony to support such an assumption. On the contrary, the evidence shows beyond all doubt that the assignors acted in the utmost good faith in making the assignment, and did what they deemed was best for their creditors. They treated all the property as partnership property, and considered all debts contracted in the management of the business as the debts of the company. The testimony is clear, positive, and uncontradicted that the father, Joseph K. P. Porter, in 1869, entered into a partnership with his son William B. to carry on a general business of farming and raising tobacco. They conducted this business until 1879, when Joseph B., the other son of Joseph K. P., became a member of the firm, and joint owner of all the partnership property, and equally liable for all the debts of the old firm. And it was understood and agreed among themselves that all the old debts and subsequent debts, whether contracted in the name of one or two or all of the partners, should bind the copartnership and be deemed partnership liabilities. Unless we disregard all the evidence in the case, these facts must be deemed conclusively established. The object of Joseph K. P. Porter in entering into this partnership was, as he testifies, to aid his sons,--to give them a “good chance” to acquire property; consequently, all the personal property owned by him, or the money contributed by his sons to the business, was treated as the property of the firm. It appears that the business was conducted and carried on without any firm name, and that the names of any one or more of the members were signed as and for the firm. and represented it. This was the intention of the parties, and there was no legal objection to the business being conducted in that manner; for if, by agreement among themselves, the individual names of the partners, or any one of them, was to be used and bind the firm, the obligations would be good against the copartnership. In this case it appears that notes were sometimes signed by each partner, or by two of them, or by one alone; but still the intention was to contract a firm debt. They could, doubtless, adopt any name, and agree that it should represent the firm in its business transactions. This is a familiar and well-settled principle of the law of partnership. See Pars. Partn. 124 et seq. Says this author: “When parties agree to transact business jointly, or under an agreement to share in the profits, the name or firm which they use is arbitrary and conventional. They may use the name of both, or of one of them alone, or any distinct designation by which all will be included and bound, as if their names were used.”

We do not perceive any legal objection to the assignment. It is said there are reserved in the instrument certain exemptions in favor of the assignors, and that this renders the assignment void. We think this position untenable. As we have observed, all the property of the...