Estate of Ryan: Merton v. Puffer

Winslow, O. J. The appellant claims that the judgment should be reversed because (1) the judgment in the case of Will of Rice, 150 Wis. 401, 136 N. W. 956, 137 N. W. 778, is res adjudicata; (2) the parties were wrongdoers between whom there can be no contribution; (3) there was no competent proof of the settlement of the partnership affairs of Ryan, Merton & Newbury; (4) the claim was barred because not filed within the time limited for general creditors to present claims against the estate. 1. The claim that the decision in the Rice Will Case is res adjudicaba as to the rights of the firm as between themselves is plainly untenable. No issue of this hind was raised or tried in that case, and when it is claimed that the judgment in one case determines the rights of the parties in another case upon a different cause of action it must appear that the questions were actually litigated and decided in the former case. Rowell v. Smith, 123 Wis. 510, 102 N. W. 1; Rahr v. Wittmann, 147 Wis. 195, 132 N. W. 1107. 2. The principle that there can be no contribution between wrongdoers is very familiar and is frequently applied. As between partners, however, the rule is subject to this important modification, viz.: that a claim for contribution will not be rejected unless the partnership is an illegal partnership or unless the act relied on as the basis of the claim was not only illegal, but the illegality such that it must or ought to have been known to the partner seeking contribution to have been illegal when it was committed. 1 Lindley, Partn. (2d *579 Am. ed.) 378; Story, Parta. (7th ed:) § 220; Shumaker, Parta, pp. 249, 250. Ia the preseat case, although this court held the settlemeut coatract invalid because the terms of a "will could uot thus he set aside, it did uot hold that the firin of Ryau, Mertou & Newbury were couscious wrougdoers. They were acting houestly aud ia good faith, hut uuder a mistakeu couceptiou of the law, aud heuce the right of coutributiou exists. 3, The proof of settlemeut of the partnership affairs was scauty hut sufficieut. Mr. Merton was allowed (agaiust objection for iucouipeteuey) to auswer the direct question whether a settlement of the partnership' affairs had been made It is said that he was not competent to answer the question because his answer involved a personal transaction with a deceased person. This does not necessarily follow. It appears by other testimony in the case that Mr. Newbury was the bookkeeper and cashier of the firm; that he paid the bills and distributed the moneys received between the partners apparently with frequency. Evidently the partners intrusted the financial matters of the firm to his management implicitly and received their shares from him as the business went along. There may easily have been settlements from time to time resulting simply from the acceptance by the partners without question of reports or statements submitted to them by Mr. Newbury. If it was desired to preserve the objection, counsel should have applied for leave to ask the witness whether the settlement was made personally with Mr. Ryan. 4. It is true that sec. 3844, Stats., provides that every claim against an estate not presented for allowance within the time fixed by the order limiting the time for the presentation of claims shall be barred, but sec.. 3.860 also provides that if a claim shall accrue or become absolute at any time after the expiration of the limited time it may be presented and proved at any time within one year after it accrues or *580 becomes absolute. Mr. Merton’s claim plainly comes within this class. He had no claim until he had paid the judgment in the Rice Will Case, and this was long after the expiration of the time limited. By the Court. — Judgment affirmed.