Hubbard v. Ferry

Dodge, J. It is in our view unnecessary to discuss the propriety of the reformation of the bill of sale. We deem that action unnecessary and therefore immaterial. It would be doing great violence to the ordinary use of terms to consider a mere formal transfer of “stock, fixtures, and accounts” in a going retail business to include an unknown and an unsuspected liability of an embezzler of either the property or the moneys of the concern, and there is nothing amongst the surrounding circumstances to warrant extending the natural construction of the words of the instrument to such an extent. Whether the amount recovered from Jackson be considered as reimbursement, as damages, or as a price of immunity from prosecution, we are satisfied no interest therein was conveyed by this so-called bill of sale from plaintiff to defendant. The correctness of the court’s conclusion of fact from the evidence that this settlement covered assumed peculation and embezzlement during both the period of the partnership, when plaintiff would have had an interest in the property embezzled, and the succeeding period, when defendant was alone the sufferer, depends on the view taken of many and various items of evidence, on the resolution of many ambiguous and-conflicting statements, and on the inferences to be drawn therefrom. This court does not sit to consider such questions originally. Even if we were satisfied that we should have reached a different conclusion from that of the trial court, [20] that of itself would not justify a reversal. We have carefully and anxiously examined all this evidence, and we are unable to say either that there is any clear preponderance against the trial judge’s findings or that there is no evidence which upon some reasonable construction and inference might support his conclusion. Especially is this true with reference to the method of apportionment of the amount recovered, when we realize that after having found that the payment was made and received in adjustment of a liability in part at least to the firm, the duty fell upon the defendant, as the manager of an enterprise in which others were interested with him, to mate full accounting, and the burden of proof was upon him primarily to furnish evidence upon which to ascertain the portion of the amount collected which pertained to his own private interests as distinguished from the joint interest of himself and plaintiff. Lessel v. Zillmer, 105 Wis. 334, 338, 81 N. W. 403; Somervaill v. McDermott, 116 Wis. 504, 508, 93 N. W. 553; Chaffee v. Conway, 125 Wis. 77, 80, 103 N. W. 269. Eor these reasons the judgment must be affirmed. One contention of the appellant should perhaps receive special attention. That is, that there was absolutely no evidence that J ackson was guilty of any embezzlement or misappropriation during the term of the partnership; that the only evidence offered on this subject was Jackson’s admission made to plaintiff and defendant prior to the settlement or compromise, and that such hearsay declarations of a third party are not evidence. Conceding, arguendo, that such admissions are not evidence of the fact of embezzlement, yet they constitute one of the surrounding circumstances under which defendant insisted upon the payment of a sum of money and under which Jackson yielded to such insistence and paid the sum which defendant in fact received. They, therefore, being such a circumstance, tend to justify the inference of the trial com’t, embodied in the finding, that the settlement was made on the basis of uncertain embezzlements extending [21] throughout Jackson’s employment, whether by the firm or by the defendant individually, and tend to justify the conclusion that the money received by defendant was in part at least, in the intention of the parties, due to invasions of the rights of the partnership. By the Court. — Judgment affirmed.