Clinton Bridge & Iron Works v. First National Bank of Darlington

Dod&e, J. Tbe issue of law joined by counsel in tbis court is a simple one, namely, whether or not tbe relations between Curry and tbe plaintiff were those of copartnership inter sese, so that tbe acts of Curry in receiving tbis town order- and in transferring it to the bank were effective. That agreement, expressed in tbe letter quoted, seems to embody all tbe elements of a partnership. Tbe plaintiff and Curry entered into tbe business of taking contracts and building bridges in three counties in southwestern "Wisconsin. To-that business each was to contribute a measure of capital and each a measure of labor. Tbe plaintiff was to supply tbe manufactured iron to form tbe bridge. It was also to-supply its skill and labor in preparing tbe necessary specifications of tbe structure, and tbe estimates of tbe cost thereof, and to aid, if required, in erecting tbe bridge. Curry was-to furnish all other material, such as lumber, paint, possible-stone abutments, and also the hired labor necessary for the-transportation and erection of tbe bridge. He was also to> contribute bis labor in soliciting contracts, in attending upon the bidding and closing tbe contracts, and in erecting the bridges. Each member of tbe combination bad a practical veto upon tbe taking of any contracts. The plaintiff was to estimate tbe cost of its part of the material and name a [122] price at which it was willing, to have contract made, and Curry was restricted from entering into any contract without a fair margin of prospective profit above that estimated •cost. On the other hand, Curry was to have control of making the bids and closing the contracts. The agreement further provided that, after charging up at cost all of said material, the balance, which would obviously be net profit, should be equally divided between them; the plaintiff having furnished the greater amount of money and the lesser amount of labor, and Curry the lesser amount of money and .greater amount of labor. This seems to be a distinct joining of capital and labor on both sides for mutual profit. It is urged that there is no provision in the contract for the sharing of losses, indeed, that the contract attempts to prohibit the possibility of losses. But the express mention of the sharing of losses in a contract of partnership is by no means necessary, and indeed such omission is by no means infrequent. Parties entering into partnership, especially for a limited purpose or period such as this was, usually do so -in the contemplation that there are only to be profits and not losses,' — -a result not uniformly attained. Obviously, however, the rate or amount of profit on different contracts might vary, and it might well be that where a contract covered several bridges, as some of theirs apparently did, there might be loss upon one bridge to be made up by profits on others, or, as in case of all kinds of business, mistakes of judgment might have been made or unforeseen obstacles or burdens encountered, as well as failure to obtain payments, so that net loss, instead of net profit, upon the season’s business might have resulted. In such an event, that loss must have been shared between the parties. The contract certainly does not give to either the right to reimbursement of the money contributed by him in advance of the other, and doubtless if loss had occurred the plaintiff would have insisted on its being shared, and would have resisted [123] any demand by Curry that be be reimbursed in full his expenditure out of the moneys received, if thereby a deficit were imposed upon the plaintiff. Upham v. Hewitt, 42 Wis. 85, is much like the present case. If a partnership was created, the indebtedness due for bridges built belonged to the two as partners, and the rights of each to collect or dispose of the same were equal, unless restricted by the terms of the partnership contract, which, of course, might place such limitations upon the ordinary rights of either partner as were seen fit”. In the contract in question, the only restrictions on equality of rights consist in the provision that all contracts should be taken in the name of the plaintiff, and should be payable to the plaintiff or its order. It is not specified that the plaintiff only shall have the right to demand and receive payment; nor is Curry expressly cut off from his ordinary partner’s right in that respect. The inference from the provision that the contract should be, in terms, payable to the plaintiff, that it was intended by the parties that payment should only be made to the plaintiff, is plausible, but not irresistible. It may have been merely an adoption of the plaintiff’s name as a partnership name for the purpose of dignifying or advertising it through the community, or for some other purpose. That it was not intended to exclude Curry from receiving payment, nor from exercising ordinary partnership powers and ownership over the indebtedness arising to the two, is strongly indicated by their conduct in reference to the first substantial transaction,— that with the town of Shulls burg, at the completion of which payment was made by town orders payable to Curry, one of which he exercised the right to dispose of without calling forth any word of protest from the plaintiff. Without urging such transaction as in any way an estoppel against the plaintiff, it is cogent as a practical construction between the two parties to this partnership [124] contract of its meaning between themselves upon a subject as to which it was ambiguous, to say the most for the plaintiff’s position. The conclusion reached by the trial court was correct that a partnership was created between the plaintiff and Curry, and that Curry was not, by the agreement of partnership, restricted in the right to collect indebtedness and to exercise the ordinary powers of a partner over the joint assets; that the delivery to him by the town of the town order was a compliance with the bridge contract; that the transfer of the debt to the defendant bank was effective; and that upon payment of that order to the bank the town will have fully paid the debt sued on. In view of this conclusion, the action of-the court in making the order of interpleader of which plaintiff complains is wholly without prejudice to it. It has no right to recover against either the town or the defendant, and therefore cannot complain of the judgment entered, and we need discuss neither the appealability of the order, the regularity of the appeal therefrom, nor whether any error was committed in making it. Stats. 1898, sec. 2829. One of the assignments of error is well taken, however. The town, upon the order of interpleader, paid into court all that was then due, including interest from the maturity of the warrant to the date of deposit. The judgment orders that amount to be paid over to the defendant bank, but it also gives judgment in favor of the defendant bank and against the plaintiff for the interest which would have been earned by that amount between the time of' its deposit and the rendition of judgment. This was excepted to, and is assigned as error. It is difficult to conceive upon what theoiy the plaintiff could be liable for this interest while the litigation was in progress. It was not responsible for the interpleader. It had sued the town, and, if it had recovered, might properly have recovered interest up to the [125] time of the judgment; but, failing to recover, would be liable only for costs. This part of the judgment is erroneous, and should be eliminated. By the Court. — The judgment of the circuit court is modified by striking therefrom as of its date the sum of $13-$ft¡-, and, as so modified, is affirmed. Neither party will recover costs in this court, but the appellant will pay the clerk’s fees.