Stubbings v. O'Connor

• Citation: 102 Wis. 352,78 N.W. 577
• Parties: STUBBINGS v. O'CONNOR ET AL.
• Decision Date: 14 March 1899
• Court: United States State Supreme Court of Wisconsin

102 Wis. 352

78 N.W. 577

STUBBINGS

v.O'CONNOR ET AL.

Supreme Court of Wisconsin.

March 14, 1899.

Appeal from circuit court, Oneida county; Charles M. Webb, Judge.

Suit by Wilson H. Stubbings against Ann O'Connor and others. There was a decree for plaintiff, and defendants appeal. Modified.Silverthorn, Hurley, Ryan & Jones, for appellants.

Alban & Barnes, for respondent.

CASSODAY, C. J.

This is an action to foreclose a note and mortgage upon real estate given by John O'Connor, now deceased, and the defendant Ann O'Connor, his wife, to the plaintiff, April 10, 1889, under the following circumstances: It appears in the record, and is undisputed, or found by the court: That prior to August 8, 1888, the plaintiff (who then, and has ever since, resided at Chicago) owned a stock of goods at Marenisco, Mich. That John O'Connor entered into an agreement, in writing, wherein and whereby the plaintiff agreed, in effect, to furnish to John O'Connor such sums of money as might be agreed upon between them, for the purpose of opening a general store at Eagle River, and he was to receive for the same interest thereon at 10 per cent. per annum for the time such moneys were in the business, payable semiannually. That John O'Connor was to give security for all moneys so advanced. That interest was to be paid out of the business, and also the expenses of running the store, after which the profits were to be equally divided between the plaintiff and John O'Connor on the 1st days of January and July of each year. That thereupon the plaintiff's stock of goods at Marenisco was taken to Eagle River, where John O'Connor resided, and put into such general store at that place, in the name of John O'Connor, but, it would seem, without any agreement as to the amount that the plaintiff should be allowed for such stock, except that the same should be put in at cost price; and so it happened that a controversy arose between the plaintiff and John O'Connor in respect to the amount to be allowed for such goods. That during the winter of 1888-89 the plaintiff was engaged in logging operations in the vicinity of Eagle River, and his jobbers purchased at the store in Eagle River goods to an amount exceeding $5,000, the payment of which was guarantied by the plaintiff. That the plaintiff asserted that the prices charged him on account of the goods were unreasonably high, which John O'Connor denied, and claimed that the price claimed by the plaintiff for the Marenisco stock was more than should be paid therefor. That the matters in dispute were finally adjusted and settled by the parties thereto, without any fraud, concealment, or mistake having been practiced by or upon either of the parties; and it was further mutually agreed that the plaintiff should pay in full the accounts at the store which he had guarantied, and that he should throw off $100 from the price claimed for the Marenisco stock, and that he should receive credit for such stock to the amount of $4,235.60 on account of the same, and which sum was the agreed value of the stock. That the parties had a full and fair settlement of their partnership transactions and dealings April 10, 1889, and it was found and agreed by them on that date that the plaintiff had made advances to John O'Connor for the purpose of carrying on the business, which, with interest thereon, together with the agreed value of the Marenisco stock, and interest thereon, amounted in the aggregate to $19,576.43, that the accounts at the store so guarantied by the plaintiff amounted in the aggregate to $5,085.63, and hence that the net balance invested by the plaintiff in the business amounted to $14,490.80. That upon such settlement the plaintiff and John O'Connor entered into an agreement, in writing, dated April 10, 1889, and signed by them, respectively, and wherein it was recited that John O'Connor was then, and for some time prior thereto had been, engaged in carrying on a general merchandise business in Eagle River, and that the plaintiff had theretofore loaned to him $14,611.50, which he therein agreed to allow to remain with John O'Connor for a period of five years from May 1, 1889; that therefore, and in consideration of the above, John O'Connor covenanted and agreed with the plaintiff to pay to him interest at 10 per cent. per annum on $14,611.50, evidenced by a note of even date, and also one-half of the net profits arising from the business conducted by John O'Connor,--the net profits to include all the proceeds arising from the business, after deducting all current expenses, including rent of store and clerk hire; that John O'Connor thereby agreed to keep a true and correct set of books, showing all the accounts and transactions of the business, which books should be open at all times for the inspection of the plaintiff; that such agreement should bind the parties thereto, their heirs and assigns; that during the term of five years the stock of goods in such business should not be sold out in bulk without the consent of both parties thereto. That on the same day, and as a part of the same transaction, John and Ann O'Connor, his wife, executed and delivered to the plaintiff their promissory note, in writing, payable five years after date, for $14,611.56, with interest at 10 per cent. per annum, and at the same time gave him five coupon notes, each for the amount of such annual interest, and due in one, two, three, four, and five years, respectively, for the purpose of securing the payment of the annual installments of interest on the principal note as the same may become due. That, as collateral security for the payment of such six several notes, John O'Connor and wife made and executed the mortgage in question upon the real estate described. That it was further stipulated and provided in and by the notes and mortgage that in case default was made in the payment of such notes, or of any interest due thereon, or any part thereof, at the times specified therein, the whole amount of principal and interest thereon would become due and payable immediately, at the option of the plaintiff. That the mortgage was duly recorded April 11, 1889. That it was the purpose and intention of the parties that John O'Connor should assume all the partnership debts April 10, 1889, and become liable to the plaintiff for the entire amount of moneys furnished by him for the purpose of carrying on the business. That the plaintiff did not furnish any money or means to carry on the business after April 10, 1889. That John O'Connor died July 4, 1889. That immediately after his death his widow and children opened the store, and commenced to sell goods and carry on the trade in the usual manner. That the care and conduct of the business were under the immediate supervision of his son George E. O'Connor, with the apparent knowledge and consent of the other heirs. That goods were bought for the continuance of the business, immediately after the death of John O'Connor, by George, in the name of the estate, and several of the heirs were employed in carrying on the business. That the defendants George and Ann O'Connor applied for letters of administration of the estate, and were duly appointed as such administrators, in September, 1889, and inventoried the stock and accounts due on account of the business as part of the estate; and thereafter the business was, with the knowledge and consent of the other heirs, carried on in the name of George, as administrator of the estate, by George and Ann O'Connor. That George continued to sell the stock on hand at the death of his father, and to replenish it with other stock, and to use moneys received from real estate and rents, as administrator, for the purposes of carrying on the business, until September, 1891, when the business became hopelessly insolvent. That the plaintiff did not visit Eagle River, nor have any correspondence relative to the business with the heirs, until July 31, 1889. That he did not then or thereafter assert any claim to the property as surviving partner, and did not undertake to assume any control over the property. That the plaintiff took no part in the management of the business, and exercised no control over the same, and made no advances for the purpose of carrying it on, after the death of John O'Connor. That in the latter part of July, 1889, the plaintiff expressed to a son-in-law of John O'Connor, as his opinion, that it would be best for all concerned to continue the store business, and July 31, 1889, he had a conversation with George to the same effect, and that thereafter the store business was so conducted and carried on, with his knowledge and approval. That July 17, 1890, the administrators paid on the notes and mortgage $1,000, to be credited upon interest due and payable at that date. That July 15, 1891, the plaintiff duly exercised his option to declare the whole sum secured by the notes and mortgage due and payable, and did declare the same due and payable, and duly served notice of such option upon the defendants herein. This action was commenced August 28, 1891, against the administrators alone. That on or about November 18, 1891, the summons and complaint were amended by adding the heirs at law of John O'Connor. That on the same day the amended complaint and notice of lis pendens were, respectively, filed. That...