Sweet v. Davis

Pinney, J. This appeal is entirely destitute of merit. The answer, in effect, admits the sale and delivery of the goods to the firm of P. H. Leonard & Go. The mere allegation of defendant’s ignorance of the nature, character, [411] and extent of the transactions of his firm through his deceased partner with the plaintiffs, is not enough to require the plaintiffs to make proof on the subject. He does not deny having information on the subject sufficient to form a belief. R. S. sec. 2655; Robbins v. Lincoln, 12 Wis. 2; State ex rel. Soutter v. Common Council of Madison, 15 Wis. 30; Mills v. Jefferson, 20 Wis. 50. The defendant’s relation to the transactions in question, as a copartner in the firm, and his duty as surviving partner to settle up and adjust its affairs, was such as to require him to inform himself by consulting the books and papers of the firm, presumptively in Ms custody or control. The answer, as to whether the particular goods were sold by the plaintiffs to the firm, is a mere evasion and was not sufficient to require the plaintiff's to make proof on the subject. Mills v. Jefferson, 20 Wis. 50; Hathaway v. Baldwin, 17 Wis. 616. If the defendant was ignorant on the subject, he was bound to resort to the means of information presumptively within his reach, and to answer accordingly. There was sufficient competent proof of the value of the goods, there being no evidence to the contrary, to warrant the direction of a verdict for the plaintiffs. The salesman who testified to the value of the goods did not derive a knowledge thereof from the deceased partner, Leonard. It is clear that the appeal is frivolous and was taken merely for delay. In affirming the judgment we allow the plaintiffs seven per cent, damages for their delay, in addition to interest upon the amount of their recovery. R. S. sec. 2951. By the Court.— The judgment of the circuit court is af-. firmed, with costs, and seven per cent, damages to the plaintiffs, in addition to interest, for their delay.