Schœffler v. Schwarting , 17 Wis. 320 ( 1863 )

By the Court,

Oole J.

This case presents substantially -the same questions of law and fact as when it was before us on a former appeal. We then indicated our views in regard to matters stated in the complaint, and declared, in effect, that upon the record as it then stood we had no doubt that a partnership existed between the respondent and Wendte in publishing a German newspaper in Milwaukee. We find nothing in the case now to shake or overcome that conclusion. It appears tó us that the principles of self-interest and the die-tates of prudence and discretion which control the conduct of mankind, would have prevented the respondent from consenting to an inventory of his property as belonging to the estate of Wendte, if the latter really had no interest in the printing establishment, and above all would have prevented him from entering into the written agreement to pay twenty-five hundred dollars for an interest which had no existence, and actually paying several hundred dollars of the purchase money. .On the trial, the respondent proved by the testimony of two witnesses some verbal admissions of Wendte to the effect that he was working on a salary. Lorenzen says he had a conversation with Wendte in 1851, notmore than aday or two after his name appeared in the paper as one of the proprietors, in which Wendte stated that he was not a partner of Schaeffler. But this witness says that this was a casual conversation, which took place either at Wendte’s house orin asaloon, but he cannot say whether any one was present, nor could he tell the time of day it occurred, or the state of the weather, or whether there was snow upon the ground, nor'give any reason or circumstance why he was able, after the lapse of ten or eleven years, to recall the substance of the conversation. The other witness, Kreuer, says that some time in November, 1851, when he came to Milwaukee to edit the Wisconsin Banner, Wendte in a conversation told him that Schaeffler employed him to keep the books, and that he also made him a partner so that he would become more interested in the business, &c. Now to say that such loose declarations as_these are to overcome the effect of the respondent's consenting, some years afterwards, to the interest of one half of the newspaper establishment being inventoried as the property of Wendte, and to the solemn act of Schaeffler in buying that interest and paying for it in part, is giving them a weight to which they are not entitled. Wemuch rather prefer relying upon the solemn, deliberate acts and admissions of Schceffler himself. He certainly held Wendte out to the world as his partner: treated with his administrator upon tbe basis that Wendte owned one half of the establishment; purchased that interest, and has paid more than a thousand dollars upon the purchase. These written admissions, repeated acts and declarations of Schceffler were more deliberately made, and are far more satisfactory as to the nature and extent of Wendte’s interest in the property, than anything that the above named witnesses swear to. But we do not feel called upon to dwell upon this case. Nothing has been proven which tends to impeach or destroy the validity of the written contracts entered into by the respondent. We see no reason why they shoald be cancelled or declared void.' v

The judgment of the circuit court is reversed, and the cause remanded with directions to dismiss the complaint.