Wittmann v. Berger

Winslow, J. Tbe plaintiff brought action for an accounting, claiming tbat be bad been for a number of years a partner with tbe defendant in a manufacturing business in Milwaukee, doing business under tbe name of tbe Berger Bedding Company. Tbe defendant admitted tbat prior to Jan627 nary, 1896, the plaintiff had an interest in the profits of the business, but alleged that this interest terminated by agreement at the date named, and that since that time the plaintiff had been employed by him as a traveling salesman only, and admitted that he owed the plaintiff the sum of $2,304.93 for salary and commissions earned but not drawn. The issues were referred for trial to a referee, who found the facts to be substantially as contended by the defendant; and these findings were confirmed by the court and a money judgment entered for the plaintiff for the amount due. The plaintiff appeals, and claims that the finding to the effect that the partnership or profit-sharing interest of the plaintiff was terminated in January, 1896, is contrary, to the clear preponderance of the evidence. Careful reading, of the evidence convinces us that the findings might well have been in accordance with the plaintiff’s contention. There are facts which point in that direction quite persuasively. But there certainly is testimony supporting the finding, and we find ourselves unable to say that it is against the clear preponderance of the evidence. By the Court. — Judgment affirmed.