Mann v. Ætna Insurance

Lyon, J. It was settled by tbis court in its decision on one of tbe former appeals (38 Wis., 114), that tbe complaint states a cause of action in favor of the plaintiffs and against tbe defendant for tbe moneys paid by tbe former on account of tbe judgment recovered by tbe defendant in tbe Milwaukee county court in 1862, against Aldricb, Smith & Co. Hence, bad all of tbe material averments of tbe complaint been proved as made, there could be no doubt of tbe plaintiffs’ right to the judgment which they recovered in tbis action. Tbe only question to be determined is, therefore, 'whether tbe variance between tbe bonds described in tbe complaint and those read in evidence is fatal to such right of recovery under tbe present pleadings. It is believed that tbe determination of this question will dispose of all tbe exceptions in tbe case and all tbe errors assigned by tbe appellant. Tbe bonds do not seem to have been executed individually by but one of tbe firm of Mann Brothers, but only in tbe name of tbe firm. Whatever objection might have been made by tbe partners not executing tbe bonds in their individual capacity, to tbe form of execution, in case tbe action were against them on the bonds, there is no doubt of tbe right of the firm in whose name and for whose benefit they were executed, to treat "them as valid and binding obligations against it. And tbe firm did so by paying tbe judgment recovered against Aldricb, Smith & Co. in tbe Milwaukee county court. Moreover, tbe firm having received tbe consideration for which tbe bonds were given, will not be beard to deny their validity. Eor these reasons, we think the objection to tbe validity of tbe bonds because of tbe fact that each member of tbe firm did not execute them individually, is not available to tbe defendant. [553] These bonds are mentioned in the complaint for the purpose of showing that Mann Brothers were under legal obligation to pay the judgment recovered against Aldrich, Smith & Go. This action is not upon the bonds, but they are only referred to as matter of inducement to the cause of action, which is to recover back the money paid on that judgment by Mann Brothers. The form of the bonds can be of no importance to the defendant, which is only concerned to know- that by virtue of them the payment of the judgment by Mann Brothers was not a mere voluntary payment made without legal obligation or authority. Each member of a firm is liable for all of the debts of such firm; and the bonds read in evidence, although not executed to all of the members of the firm of Aldrich, Smith & Go., bound or_ authorized Mann Brothers to pay the Milwaukee judgment, just as effectually as though the firm, or all of its members, were named as obligees. Ve conclude, therefore, that the alleged variances could not possibly prejudice the defendant, and do not in any manner affect the plaintiff’s right to recover in this action, and hence, that they are entirely immaterial and were properly disregarded by the county court. Moreover, if the covenant of the plaintiffs is merely to save Aldrich, Smith & Go., or some member of that firm, harmless from the debts and liabilities of the firm, we are not prepared to say that under such a covenant the payment of the Milwaukee judgment by the plaintiffs was a mere voluntary payment. We reach these conclusions more readily because the record shows that the money paid the defendant on the judgment against Aldrich, Smith & Go., ought in justice and equity to be repaid to the plaintiffs, and that the moral, if not the legal duty to repay it was made apparent by the decision of the supreme court of the United States, made as early as 1869. By the Cowt. — Judgment affirmed.