Hayes Motor Truck Wheel Co. v. Wolff , 175 Wis. 501 ( 1921 )

Vinje, J.

The trial court correctly concluded that the defendants were copartners so far as the plaintiff’s claim was concerned, for, conceding the validity of the trust agreement, they never held themselves out as doing business thereunder. It is therefore not necessary to set out the terms thereof nor to pass upon its validity. The clause quoted from their letter would indicate that the Ton-A-Ford Company was a corporation, for in Carpenter v. McCord L. Co. 107 Wis. 611, 83 N. W. 764, it was held that a defendant sued as the McCord Lumber Company was intended to be sued as a corporation sufficiently appeared from its name. Here we not only have a corporate name but the letter speaks of the officers and shareholders of the company. But defendants were not incorporated,' and since they did not hold themselves out as operating under a trust agreement they were as to plaintiff copartners individually liable for the debts of the concern contracted while they were partners thereof. Bartelt v. Smith, 145 Wis. 31, 129 N. W. 782.

It remains to consider whether or not the trial court correctly held that plaintiff could not maintain the action because it had filed its claim in the municipal court and received a dividend thereon in the action begun by one of the partners, Harry J. Sanders, and had not further prosecuted its claim in that action. The trial court seems- to have regarded that action as a creditor’s action, and its findings of fact were not sufficiently definite to fully and truly characterize it, though the findings and testimony did not show anything further than a winding-up action between partners. That such was the nature of the action became certain by the complaint therein, submitted by stipulation. It appears therefrom not only that it was not brought on behalf of creditors, but that it prayed for an order restraining them from prosecuting their claims therein. Under such circumstances they may file their claims, receive a dividend, and in separate actions have recourse to the assets of the individual partners, for in the partnership action to wind up its affairs the receiver occupies the same relation to the creditors that the firm did before his appointment. The rule is thus stated in High, Receivers (4th ed.) p. 704:

"Where, however, the receiver is appointed for the settlement of the affairs of a partnership, not at the instance and for the benefit of creditors but upon the application of one of the partners against the other, such receiver is in no sense a representative of the creditors of the firm and he accordingly occupies no better position than the firm with respect to its property, and he can assert no greater right or title with reference to the business and property of the partnership than could the members of the firm themselves.”

He does not represent the creditors. Weber v. Weber, 90 Wis. 467, 63 N. W. 757. Since they are not parties to the action they cannot marshal partnership assets therein, and the fact that they have received a dividend does not bar them from recourse to the liability of the individual partners. The trial court,- therefore, erred in holding that plaintiff was barred by filing its claim in the municipal court action and in failing to further prosecute its claim therein against the partners.

By the Court. — Judgment reversed, and cause remanded for. further proceedings according to law.