Wipperman v. Stacy

OetoN, J. Both of the above cases depended upon the same questions of law and fact. They are both for goods, wares, and merchandise sold and delivered to the appellant and E. E. Green as copartners. They were tried before a referee, and judgment was rendered in each case for the [347] plaintiff, on confirmation of the referee’s report, and the said Stacy has appealed from each judgment. The defendants, F. F. Green and W. II. Stacy, on the 26th day of October, 1888, entered into an agreement whereby defendant Green was to put in his time and labor, and the said Stacy was to furnish $20,000 in money or credits, to carry on the business of retail merchandise at the village of Keshena, Shawano county, in this state, and they were to share the profits of said business equally.' The said Green was to have the purchasing of all goods that were used in said store, but of parties named by said Stacy. This is all of the agreement of partnership that is material. Stacy resided at Clintonville, a considerable distance from Keshena, and Green resided at Keshena with his family. Both plaintiffs had, been in the habit of selling goods to the concern at Keshena on the order of Green and by the consent of Stacy, up to the 3d day of December, 1888. On that day Stacy served upon the plaintiffs the following notice : “ Clintonville, Wisconsin, Dec. 3d, 1888. Dear Sir: Don’t let F. F. Green have anything to be charged to me, unless by an order [upon order] from Clintonville, given by me. [Signed] W. H. Stacy.” About that time Stacy published in a Clintonville paper the following notice: “Notice is hereby given that I, W. H. Stacy, do forbid all and every one from selling F. F. Green in my name anything of. any kind or nature, for I will not pay for the same nor hold myself responsible. [Signed] W. H. Staoy.” Of the goods sued for in both cases, part were sold and delivered and went into the Keshena store before, and part after, the service of the above notice; /and they were used or sold and accounted for in said store; and Stacy knew that at least some of them were so sold and delivered and used or sold in said, store after the service of said notice, and without any objection from him. Stacy was often at the store, and knew what business was done, and all the bills for the [348] same were present in the store, open to bis observation and inspection. The referee . found, in both cases, that the defendant Stacy, by his acts and conduct, previous and subsequently to said notice, in receiving the plaintiff’s goods without hindrance or objection, and selling the same, and applying the proceeds to the use and benefit of the said copartnership, ratified and approved' or consented to the doings and acts of his copartner, F. F. Green, in said matter. This finding appears to have been fully warranted by the evidence. These are the substantial and material facts, and, as a question of fact, we cannot disturb the finding of the referee. The learned counsel of the appellant contends that the firm is not liable for any goods sold to it by the order of Green after the service of that notice. There is.no provision 'in the agreement of copartnership for any such notice, to those who are selling goods to the concern, not to sell on Green’s order. There is a clause, “ that said goods shall be purchased of parties named by said W. II. Stacy.” That can have force only as between Stacy and Green. Stacy may name to Green the parties from whom he shall purchase goods for the concern. From the fact that both plaintiffs had been selling goods to the firm for a long time by the consent and acquiescence of Stacy, the presumption would be that they were the parties named by Stacy. There is no evidence that Stacy had ever notified Green that he should not continue to purchase goods of the plaintiffs. It' follows that Green had the right to continue to purchase of the plaintiffs. If Green had such right, then the plaintiffs had the right to sell to him, so far as the agreement is concerned. It is stipulated that Green should have. the purchasing of all goods that are used in said store. The only limitation of that right was that Stacy should name .the parties [349] from whom purchases might be made by him, and that limitation Stacy has never attempted to enforce upon Green. Green had the right, therefore, to purchase from whom he pleased. If Green had the right to purchase, the plaintiffs had the right to sell. "What right had Stacy to forbid the plaintiffs from selling to Green or any one else? The agreement contains no such provision. This must be the legal construction of the agreement. But the notice is riot that the plaintiffs shall not sell to the firm of Stacy & Green for their store. But it is: “ Don’t let F. E. Green have anything to be charged to me, unless by an order [or upon order] given iy me.” The notice provided for in the agreement is personal to Stacy and Green as individuals. Don’t let Green have anything on my accoimt without my order, is the effect of the notice. The plaintiffs had the right to construe and understand this notice according to its language. The plaintiffs have had no notice from Stacy not to sell goods to the partnership to be charged to the partnership. The notice, therefore, has no effect whatever upon the liability of the firm, even if' Stacy had any right to give it. But if the notice can be construed to mean that the plaintiffs shall not sell to the concern to be charged to the concern, which was the only thing they had been doing or offered to do, it is equally nugatory, because not provided for in the agreement. The only other contention of the learned counsel is that the agreement does not constitute a copartnership between Stacy and Green. It seems to us that it contains every essential element of a partnership. Stacy was to contribute his money, and Green his skill and labor as á merchant, and to conduct the business and make all the purchases, and they were each to have one half the profits. Although there is no provision that each was to bear one half of the losses, the equal division of the profits implies that of the losses. [350] Upham v. Hewitt, 42 Wis. 85. As said in that case, where there was no such express provision, “ there was necessarily a communion of profit and loss.” Rosenfield v. Haight, 53 Wis. 260; 1 Lindl. Partn. 12. See Gilbank v. Stephenson, 31 Wis. 592; and other cases cited in respondent’s brief. But the evidence that Stacy knew that these goods were being sold to the firm, and that they were received into the store and were being sold out, and tacitly assented to the purchases, and participated in the profits derived therefrom, without dissent or objection, is a ratification of the purchases, and it is now too late for him to shield himself by such a notice, even if it had been given to Green himself with the knowledge of the plaintiffs. The liability of the partnership is beyond question. By the Court:— The judgment of the circuit court in both of the above causes is affirmed.