Stein v. Benedict

• Citation: 53 N.W. 891,83 Wis. 603
• Parties: STEIN v. BENEDICT ET AL.
• Decision Date: 06 December 1892
• Court: United States State Supreme Court of Wisconsin

83 Wis. 603

53 N.W. 891

STEIN

v.BENEDICT ET AL.

Supreme Court of Wisconsin.

Dec. 6, 1892.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

Action by Charles Stein against Henry Benedict and others for an injunction restraining the levy of an execution against plaintiff until property of defendant Benedict had been levied on; for a judgment declaring certain of the defendants primarily liable for the debt on which the judgment was founded; for an accounting between plaintiff and certain defendants in relation to partnership matters; and to require defendants to foreclose a mortgage securing the debt in question. From a judgment for defendants, sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

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

The plaintiff, Stein, brought this action against Henry Benedict, Charles H. Bellack, Philip Stein, and James M. Pereles and Thomas J. Pereles, trustees of the estate of William E. Lamberton, deceased, and Michael Walsh, sheriff, etc., defendants, and his complaint is, in substance, that the defendants Benedict and Stein were copartners with him as merchants, under an agreement that Philip Stein should be special partner, and contribute $25,000, Henry Benedict the sum of $35,000, and the plaintiff $25,000, profits to be divided, one half to Benedict, one fourth to Philip Stein, and one fourth to the plaintiff; Philip Stein having been guarantied by his copartners the sum of $2,500 per annum, net profits, and the return of his entire original contribution; the losses of the business to be borne, five eighths by the defendant Benedict, and three eighths by the plaintiff. November 30, 1887, the plaintiff and defendant Philip Stein, of the one part, and the defendants Benedict & Bellack, of the other part, entered into an agreement resulting in the purchase by Benedict & Bellack of the merchandise, furniture, fixtures, business, and good will of the firm of Benedict & Co., for the sum of $20,000, paid to the plaintiff, and the reimbursement of the defendant Philip Stein on a basis agreed upon, after a settlement of partnership matters and accounts, excepting the outstanding accounts due the firm and certain real estate belonging to it in Mitchell, S. D. The outstanding accounts were to be collected by Benedict & Bellack, and applied, first, to the payment of the debts of the firm, and the surplus to be divided among the copartners; the said Benedict & Bellack covenanting that they did assume, and would pay and save harmless the plaintiff and defendant Philip Stein from, all debts, demands, etc., owing or existing against the firm of Benedict & Co., etc. That afterwards, December 8, 1887, plaintiff and defendants Benedict and Philip Stein entered into an agreement whereby his connection with the partnership was terminated, and his interest therein extinguished; it being “agreed that, in consideration of Charles Stein consenting to the transfer of the assets of Henry Benedict & Co. to said Henry Benedict and Charles H. Bellack, said Benedict should pay $25,000 to Philip Stein.” That the real estate in South Dakota was subject to a mortgage for $10,000, held by Marie Stein, and executed by a former owner thereof, which had been reduced by payments to the sum of $7,000,--that being a debt and lien upon said property,--which said mortgage was renewed by the joint note and mortgage of the plaintiff and Henry Benedict, December 6, 1887, payable two years after its date. That the plaintiff executed the said note, but was liable thereon solely as surety of the defendant Benedict, and that it was primarily the debt of said Benedict & Bellack. That the said real estate was allowed by Benedict to be idle and become depreciated and dilapidated, but still being of the value of upwards of $6,000. That J. M. and T. J. Pereles, conspiring with Benedict to oppress the plaintiff, purchased the note and mortgage, ostensibly for one Levinson, with money furnished by the defendant Benedict, with knowledge of the facts aforesaid, and the latter transferred it to said J. M. and T. J. Pereles, as trustees under the will of William E. Lamberton, deceased, and as such still claim to own it. That they combined with the defendant Benedict to collect the note and mortgage out of the plaintiff's property, instead of enforcing it against the defendant Benedict and the real estate upon which it was charged; the said trustees knowing all the time that the plaintiff was not liable, in equity, for the whole of said debt, and that it would be inequitable to collect it out of his property. That Benedict, whose debt it really was, was solvent, and had sufficient property, not exempt, out of which the same could be collected, as said trustees well knew; but on the 18th of April, 1891, they procured judgment to be entered and docketed against the said Henry Benedict and the plaintiff, on said note, for $7,572.83 damages and $33.30 costs, in the circuit court of Milwaukee county, and issued execution thereon to the defendant Walsh, sheriff of said county. That the said J. M. and T. J. Pereles had notified plaintiff that he would be required to pay the whole of said judgment, with costs. That they refused to transfer the said judgment to one Louis Stein on payment of the amount thereof, or to any other person, insisting that they would collect it of the plaintiff, and refused to receive one half thereof, offered by the plaintiff, with an indemnity for all costs, etc., if they would collect the balance from the defendant Benedict. That the said J. M. and T. J. Pereles were about to cause the defendant Walsh to levy said execution and collect the same out of the separate property of the plaintiff. That the defendant Benedict and the defendants Pereles were in conspiracy against the plaintiff, and permitted the Dakota property to remain idle and unproductive, and the said Pereles refrained from enforcing the security against it, at the instigation of Benedict, and to injure and oppress the plaintiff. That Benedict had refused to consent to a sale or rental of the premises, although opportunities had offered, for a sufficient sum to pay said note and mortgage. That it would be inequitable to require the plaintiff to pay any part of the judgment-- First, because the defendants Benedict & Bellack assumed and agreed to pay it; and, second, that upon an accounting of the receipts and disbursements made by the defendants Benedict & Bellack after November 30, 1887, in the collection of the outstanding accounts, notes, and demands then due Henry Benedict & Co., and an ascertainment of the net losses of the firm of Benedict & Co., there would be due to the plaintiff from Benedict & Bellack a considerable sum over and above the amount of the said judgment which said Benedict & Bellack were bound to pay. That they have in their possession the account of moneys collected by them on claims of Henry Benedict & Co., and of disbursements on account of debts, etc., owing by said firm, so that the plaintiff cannot state the same particularly. And the plaintiff alleged that Benedict & Bellack “have in many instances and in many cases sacrificed and wasted, for their own advantage, the valid and substantial claims which were due to the said firm of Benedict & Co., but the plaintiff does not know and cannot state the particular items so sacrificed and wasted, but alleges that there will be a substantial sum found, upon an accounting, for which the defendants Benedict & Bellack should account to the plaintiff” by reason thereof, and that the plaintiff had demanded from the defendant Benedict an accounting and inspection of the books of said firm, which had been at all times refused. The plaintiff prayed (1) for an injunction restraining the levy of said execution upon his property until the property of the defendant Henry Benedict had been levied upon and exhausted, and against the enforcement of said judgment against plaintiff's property; (2) that he have judgment that Benedict & Bellack are primarily liable, as principals, for the debt on which the judgment was founded, and that plaintiff's liability thereon is only as surety, and requiring the same to be collected out of Benedict's property; (3) that there be an accounting had between the plaintiff and the firm of Benedict & Bellack of the matters and things arising or done by them under or in pursuance of the agreements between them and the plaintiff and Philip Stein, of November 30, 1887, and that he have judgment for any amount found due him, and that a separate account be stated between the plaintiff and Benedict of the copartnership transactions of the firm of Henry Benedict & Co., so far as the same had not already been adjusted, for the purpose of ascertaining the net loss arising therein, and that Benedict be charged with five eighths thereof and the plaintiff with three eighths, and that the plaintiff have judgment against Benedict for any amount found due him on such account; (4) that James M. and T. J. Pereles be required to foreclose the mortgage on the Dakota property, and exhaust the security afforded by it, before having recourse to the separate property of the plaintiff under the judgment. All the defendants answered the complaint, except the defendant Bellack, who demurred on the ground, among others, that there was a misjoinder of causes of action, that the court had no jurisdiction of the action, and the complaint did not state facts sufficient to constitute a cause of action. The action coming on for trial, the defendants severally objected to any evidence under the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and that it appeared from it that the plaintiff had an adequate remedy at law at the foot of the judgment in the action described in the complaint. This objection was sustained, and the court rendered judgment dismissing the...