Tucker v. Cole

• Decision Date: 14 March 1882
• Parties: TUCKER v. COLE AND ANOTHER.
• Court: Wisconsin Supreme Court

54 Wis. 539

11 N.W. 703

TUCKER

v.COLE AND ANOTHER.

Supreme Court of Wisconsin.

Filed March 14, 1882.

Appeal from circuit court, Clark county.J. R. Sturdevant and R. J. MacBride, for respondent.

James O'Neill, for appellants.

TAYLOR, J.

The respondent recovered judgment for the value of a quantity of staves, which he alleges were made from timber cut upon his land without his authority, by an act of trespass, and which afterwards came into the possession of the defendants and were converted by them to their own use. The plaintiff recovered the value of the staves while in the hands of the defendants, under the provisions of section 4269, Rev. St. 1878. The proofs clearly show that a quantity of staves, made out of timber unlawfully cut upon the plaintiff's land, were purchased by the defendants and afterwards sold by them. It seems to be admitted by the defendants that the plaintiff is entitled to a judgment for the value of the standing timber, and the sole controversy is as to the right of the plaintiff to recover the value of the staves while in the hands of the defendants. The plaintiff claimed the right to such recovery on the ground that the defendants had notice that they were made out of his timber, unlawfully and wrongfully cut upon his land by the person from whom they purchased them, and so they were within the terms of the section above referred to; that they were in fact purchasers with notice of the trespass.

The evidence on the part of the plaintiff not only tended to show that the defendant Paschelles had notice of the trespass, but that he actually directed the party who did the cutting to go on and commit the trespass. It is true, this is denied by Paschelles in his testimony; but as the jury have found in favor of the truth of the evidence given by the plaintiff's witnesses, their verdict is conclusive upon that point. There was no evidence that the defendant Cole had any notice of the trespass; but the evidence shows that Cole and Paschelles were partners in the business of purchasing and selling staves, and other timber and commodities, at the place where these staves were bought; that the staves were bought and paid for by the firm, and were afterwards sold by the firm and the firm received the money therefor. The learned counsel for the appellants insist that the defendant Cole, although a partner of Paschelles, and although the staves were bought and sold by the firm, was not chargeable with notice of the trespass by reason of notice to his partner, and therefore it was error to assess damages against him under the statute above referred to. In this we think the learned counsel is mistaken.

The general rule is that notice to one partner is notice to all, and that the tort of one partner, committed in the transaction of the ordinary business of the firm, is the tort of all. Story, in his work on Partnership, section 107, says: “So, notice to or by one of a firm is deemed notice to or by all of them;” and in section 108 he says: “The principle extends further, so as to bind the firm for the frauds committed by one partner in the course of the transactions and business of the partnership, even where the other partners had not the slightest connection with or knowledge of or participation in the fraud; for, as has been justly observed, by forming the connection of partnership the parties declare themselves to the world satisfied with the good faith and integrity of each other, and impliedly undertake to be responsible for what they shall respectively do within the scope of the partnership concerns.” Again, in section 166 of the same work, the learned author says: “But torts may arise in the course of the business of the partnership for which all the partners will be liable, although the act may not in fact have been assented to by all the partners;” and then adds various instances where partners are held responsible for the frauds and conversions of their associates, though committed without their knowledge.

If, in the case at bar, the proof had been that before the defendants purchased these staves one of the partners had been expressly notified by the owner of the timber that they had been made out of his timber, unlawfully cut upon his land, and if they...