W. E. Smith Lumber Co. v. Estate of Fitzhugh

Rosekberry, J. The errors relied upon are three: (1) The court erred in rendering judgment against the defendant until plaintiff had exhausted its remedy against the surviving partner of the firm of O. W. Hunter & Company. [358] (2) Tbe court erred in refusing, to require the surviving partner of 0. W. Hunter & Company to be made a party to this action. (3) The court erred in its construction of the contract as to the paylnent of interest by 0. W. Hunter & Company. The first and second assignments of error are discussed together, and involve a construction of sec. 3848, Stats., which is as follows: “When two or more persons shall be indebted on any joint contract or upon a judgment founded on a joint contract and either of them shall die his estate shall be liable therefor, and the claim may be allowed by the court as if the contract had been joint and several or as if the judgment had been against him alone, and the other parties to such joint contract may be ■ compelled to contribute or to pay the same if they would have been liable to do so upon payment thereof by the deceased.” It appears without dispute that the debt owing from C. W. Hunter & Company to the plaintiff was the joint debt of Tschudy and Fitzhugh, copartners.' It is claimed by the appellant that the estate of Daniel Fitzhugh is not liable at lav/ to the plaintiff, and that if any action at all can be main- • tained against the estate it must be maintained upon equitable grounds. Sherman v. Kreul, 42 Wis. 33. That a partnership creditor can enforce payment against the estate of a deceased partner only when it is made to appear that the surviving partner is insolvent. Voorhis v. Child's Ex’r, 17 N. Y. 354; Pope v. Cole, 55 N. Y. 124; Costigan v. Lunt, 104 Mass. 217. It is further contended that plaintiff must first exhaust the securities held by it before it can resort to a claim against the estate of the deceased partner. Wilder v. Keeler, 3 Paige Ch. 167, 23 Am. Dec. 781; Ladd v. Griswold, 4 Gilm. (Ill.) 25, 46 Am. Dec. 443; Lawrence v. Trustees, 2 Denio, 577; Bradley v. Burwell, 3 Denio, 261. Whatever the rule may have been at common law is immaterial, if under the provisions of see. 3848, Stats., the plaintiff has a right to establish his claim as against the es [359] tate of tbe deceased copartner. If tbe statute does not mean that a claim may be established against tbe estate of a deceased joint debtor as if tbe liability were several, and that in tbe event tbe estate is compelled to pay tbe same it may have contribution therefor, it is difficult to give it any meaning at all. Tbe claim of tbe plaintiff in this case is clearly not contingent. Austin v. Saveland’s Estate, 77 Wis. 108, 45 N. W. 955. In tbe case before us two persons were indebted on a joint contract and one of them died. Tbe statute provides that bis estate shall be liable therefor, and that tbe claim may be allowed as if tbe contract bad been joint and several, which has been done in this case. Exposition cannot make tbe matter plainer than it is made by a statement of tbe facts and a consideration of tbe statute. Tbe claim was correctly allowed against tbe estate, and it might be proved without making tbe surviving partner a party to tbe action. After providing for tbe advancement of $5,000 with which to complete tbe mill, tbe contract contained tbe following agreement: : “And tbe second parties [plaintiff] agree that it will hereafter advance on monthly estimates to be made by itself on tbe lumber manufactured during tbe preceding month, as much as five and 50-100 ($5.50) dollars per one thousand feet on tbe lumber manufactured and put on sticks. On all such advances tbe first parties shall pay interest at tbe rate of six per cent, per annum, but on advances made on monthly estimates tbe interest shall cease to run after the lapse of ninety days from tbe date of each advance.” Advances were made greatly in excess of tbe amounts that were due under tbe contract. Tbe defendant contends that tbe phrase “as much as five and 50-100 ($5.50) dollars per one thousand feet” implies that if a greater sum is advanced it is advanced under tbe same terms as tbe $5.50, and that therefore tbe advances cease to bear interest after tbe lapse of ninety days from tbe date of each advance. We do not [360] find it necessary to determine whether or not that is a correct construction of the contract. The trial court found: “And it became agreed and understood between the parties that upon all such excess advances [in excess of $5.50 per thousand feet] Hunter & Company should be charged with interest at the rate of six per cent per annum until repaid. The advances were thereafter made by Smith Company as the pressing necessities of Hunter & Company required, and upon requests of Hunter & Company and without waiting for or particularly having reference to estimates of lumber put on sticks.” There is ample evidence in the record to sustain this finding of the trial court, and it disposes of the question as to whether or not interest upon excess advances was properly allowed, adversely to the claim of the defendant. By the Court. — Judgment affirmed.