Loosen v. Schissler

Vinje, J. Some claim is made that the Schisslers and Spurny were not partners. But the evidence is conclusive [452] that for years they held themselves out, and acted, as such, and it is admitted that as to third persons they were partners; which is sufficient for the purposes of this case, as there is no evidence to show that plaintiff did not deal with them as partners, or that he had any knowledge that they were not such. But the evidence shows that they were in fact partners. Being such, notice to one partner concerning partnership transactions is notice to the copartners. Hubbard v. Galusha, 23 Wis. 398; Tucker v. Cole, 54 Wis. 539, 11 N. W. 703; 30 Cyc. 531; 1 Bates, Partn. § 389. So the appellant is charged with constructive notice of the Shebel mortgage even if he did not have actual notice thereof. The trial court found that he knew the title to the Shebel property was in Spurny at the time the loan was made, and there is good ground to believe he had actual knowledge of the Shebel loan and mortgage. However, be that as it may, he had constructive notice thereof, and therefore when he took the mortgage from Spumy to secure his indebtedness to the firm he knew that plaintiff had a prior mortgage on the same premises and that his mortgages were subordinate thereto. It is claimed the Shebel mortgage passed by the assignment executed in January, 1909. Just how it passed is not made clear. The Shebel mortgage was no charge against the appellant and no claim was made by plaintiff that it was. The fact that plaintiff held a mortgage on the same premises covered by appellant’s mortgages, and that his was prior to those of appellant, did not operate to malee the latter a debtor of the plaintiff or sustain any personal liability whatever towards him. Nor was the Shebel mortgage either directly or by implication mentioned or referred to in the assignment, so we must conclude the trial court correctly held it was not included therein or in the settlement then made. By the Court. — Judgment affirmed.