Bennett v. Luby

Winslow, J. The judgment in this case is certainly anomalous. The action was brought to dissolve a partnership, close up its business, settle the accounts, pay its debts, and divide the net proceeds. Both the complaint and the answer-prayed for this relief. The judgment does not dissolve the partnership; does not settle the mutual accounts, nor even refer to them; does not dispose of the residue of firm assets, in the hands of the receiver; and adjudges nothing except, that the defendant is entitled to have an entry on the books, canceled, and to receive back some money and a note which he gave the plaintiff under duress. How a judgment could be any less responsive to the pleadings, it is difficult to imagine. Yet the parties seem to have mutually agreed upon this method of disposing of the case. No errors are assigned or argued in this court, except errors in the findings of fact. — 124 — There is nothing that we know of to pievent parties from, •agreeing to the entry of an incomplete judgment, and where they have so agreed, and come to this court without exception or assignment of error which raises the question, we do not feel called upon to raise it ourselves, at least when it is mot a question which in any way affects the jurisdiction. Proceeding, therefore, to the errors alleged in the findings •of fact, as far as it seems necessary to discuss them, we shall take them up in their order. 1. It is substantially undisputed that the defendant purchased his one-half of the business relying on the inventory of March 24th, and upon Bennett's statement that he paid Cram $3,400 for Cram’s share in the business. The referee and the court found that the inventory of stock taken by Bennett & Cram January 3, 1897, was substantially a correct one; that between that date and March 24, 1897 (when defendant bought Cram’s interest), there was an actual loss or shortage in the business of $1,432.10, which was known to the plaintiff, and for which he was responsible, but that the same was concealed from the defendant by the plaintiff by means of the fraudulent and mutilated inventory of March 24th, in which was inserted a large amount of property not actually in stock;, that Bennett represented to defendant that Re had paid Cram $3,400 for his one-half interest, when in fact he had only paid $3,000; and that said interest was worth a much less sum than $3,400, owing to losses for which the plaintiff was responsible, and which he knew, but which the defendant did not know. All these findings are challenged as not sustained by the evidence, but it must be said, after perusal of the testimony, that there is considerable evidence, some of it quite persuasive in its character, in support of these various findings. We do not see what good purpose would be subserved by detailing the evidence here, and dismiss the subject by saying that the findings appear to us to be sufficiently supported by evidence. — 125 — 2. The court also found that the apparent loss suffered in the business between March 26 and November 8, 1897, was. not a real loss, but was accounted for by the false and erroneous inventory of March 24, 1897, and that the charge made by the plaintiff that the defendant had surreptitiously taken goods or money to the amount of $2,000, or any other-sum, was false and malicious. Examination of the testimony discloses ample evidence to support this finding, also. It is true, there is some evidence, mostly by the plaintiff himself, to support the charge; but there is not only direct, but circumstantial, evidence to the contrary. The evidence-which sustains the finding that the inventory of March 24th was fraudulent and stuffed also indirectly supports this finding, for it is only by comparison with this inventory that the supposed loss or shortage appears. 3., This brings us to the finding that the settlement of October, 1897, by which the defendant gave his note for $550, made a charge against himself of $250 upon the firm boobs, and paid over to the firm in cash $200, was the result of duress and coercion. In this conclusion we cannot agree-with the trial court. We have not been able to find legal duress on the most favorable construction of the evidence. The defendant was a young business man, in good health, nearly or quite twenty-three years of age, who had lived in this country more than six years and had been clerking in shoe stores more than five years. His parents lived in Ireland, but he had an aunt who was the mother superior at a convent in Janesville, besides a number of warm friends, one of whom (named Burns) was sufficiently interested in his. welfare to indorse his note for $900 when he bought out Cram. His own story of the transaction is entirely insufficient to found a charge of legal duress upon. According to-his own testimony, Bennett first charged him with crookedness in the business at the law office of Mr. Nolan, some two-weeks before the settlement was finally made. Bennett and Messrs. Sutherland and Nolan were present. Nolan told — 126 — him of the charges Bennett had against him, of the disappearance of a gold pen from the store, of the fact that goods had been sold and not charged for, and that he (defendant) had collected money and not reported it, and that the business could not continue that way, and one or the other must sell or buy. .lie insisted on staying until the matter could be investigated. Nolan left the office, and told defendant to talk to Bennett. He met Bennett next morning, and they agreed to talk the matter over on Sunday. They met on Sunday, and defendant told Bennett the charges were all false. Bennett said: “‘You have been careless. Nobody else has done so. All things seem to point to you.’ He said: ‘ When you were clerk, those things didn’t happen. Why do they happen now?’ I told him lots of reasons I had for it. I told him just then something happened that afternoon or that forenoon, I think it was. líe didn’t say anything more about it. We decided to let it go until some day the following week. Then he kept up that way. He said we just have to have a settlement, and kept on telling me of this gold pen and these other things. He said, ‘ I have got evidence enough here to send you to state prison.’ He .says, ‘You have got to make a settlement.’ So I told him I was willing to make a settlement that was right; to do the square thing. I asked him what he thought a lair settlement would be, and have us continue in the business. He never said anything about my going out of the firm. Well, he said a thousand dollars would be right. I told him that was too much. I says, ‘ I have no means of getting that thousand dollars.’ He says, ‘What did you do with the money that you collected for these goods that you did not turn in the store? ’ I said I didn’t collect anything that didn’t go into •the store. Then he suggested, when I didn’t have the money, to make it up by giving a note. I told him that I had two hundred dollars out on interest, and gave him that over in cash. Then he suggested the note idea, and the charge on the books to my personal account, with the understanding that we should go along in business. He says, ‘ You are all right. All you have to do is to keep your head on your shoulders.’ The note was to draw no interest. I asked him if he would hold it until all the obligations I had — 127 — were settled, on account of notes of Mr. Burns and Father Harlan and other parties. He said he would. He said: (¥e won’t let anybody know about this. It is all between the two of us, and we won’t let it out.’ The note was to be held pending the development of things during the year. It was my desire that we investigate. I wanted to satisfy Mr. Bennett. I thought it was the end of my business with the firm. I didn’t want to get out. I wanted to stay until the end of the year. He said the last night he had evidence enough to send me to state prison.- He made it very strong. Fie said: ‘Do you know that I have enough evidence here to send you.over the road?'’ He says: ‘I am not to be trifled with, and I will push you through. You have got to come to time. You have got to get out or settle.’ ” There is much other evidence by the defendant on the subject, but none of it is any stronger than that which is quoted. The note was not given until more than two weeks after the first conversation, and there was absolutely nothing to prevent the defendant from consulting his friends. He does not even claim that his will was overpowered, and it is plain that it was not, though he says that the threats influenced him. Under the well-established- rules of law governing duress, the facts shown are insufficient to establish that defense here. Rochester M. T. Works v. Weiss, 108 Wis. 545, and cases cited. We have met some difficulty at this point in determining whether the $550 note was given, to the firm or to the plaintiff personally. If to the firm, then of course it should be reckoned as a part of the firm assets; but, if it was given to Bennett personally, then it cuts no figure in the settlement of the firm business. There is no finding on the subject. The note itself is not returned to this court with the record. The judgment recites that it has been returned to the court by the referee, and directs that it be canceled and returned to the defendant. Apparently this part of the judgment must have been complied with. The plaintiff says he wrote the body of the note himself, and the defendant says he signed it without reading it. The answer of defendant al — 128 — leges that the note was given to the firm, and this is in some degree corroborated by the fact that the charge of $250 against the defendant on the books of the firm is necessarily a credit to the firm, and not to Bennett personally. It is plain that it was not intended that one-part'of the $1,000 was to be paid to the firm, and one part to Bennett personally. The only written evidence now before ns which bears upon the question whether the settlement was made with the firm, or with Bennett personally, is the evidence of the entry on the books, and this conclusively shows that the money was to be paid to the firm. The defendant refers in his testimony to the “ $1,000 paid to the firm by me,” and there is nothing in the plaintiff’s testimony directly contradicting this theory, though the note is referred to by him as being given “to me.” On the whole evidence, and especially in consideration of the entry in, the book, we have concluded that we must treat both the note and the charge on the book as assets of the firm, and not the individual property of the plaintiff. So treating it, and holding that the evidence is insufficient tó justify setting aside the transaction on the ground of duress, and holding, also, that Bennett must pay into the firm the shortage in the firm assets of $1,432.10 which was concealed in the inventory of March 24,1897, we have the following as a correct statement of the firm assets, so far as the issues which have been tried and settled in this case are concerned: Net assets of firm, as found by the referee, after sale of property and payment of debts by'receiver. $498 61 Note given by Luby to firm. 550 00 Charge on books against Luby. 350 00 Shortage in firm assets, for which Bennett must account.... 1,483 10 Total assets of firm. $3,735 71 The share of each partner being one half, or $1,363.85, to make up this amount Luby must be charged with his note and the charge on the books. '$800 00 And is entitled to the balance. 563 85 Total $1,863 85 — 129 — If the firm assets in, the hands of Bennett, as receiver, or in the possession of the court, are not sufficient to pay to Luby the above sum of $562.85, the deficiency should be made a personal judgment against the plaintiff. By the Court.— Judgment reversed, and action remanded with directions to render judgment as indicated in the opinion. No costs, are to be allowed in favor of either party, except that appellant shall pay the fees of the clerk of the court.