February 5, 1934.
March 6, 1934.
APPEAL from a judgment of the municipal court of Winnebago county: SILAS SPENGLER, Judge. Reversed.
This action was begun on September 2, 1932, to recover for services rendered under contract. Upon the trial the court found in favor of the plaintiff, judgment being entered on January 3, 1933, from which the defendant appeals.
From the evidence it appears that the plaintiff is a painting contractor. He and another contractor by the name of Alfred Pasano entered into an arrangement which Pasano claims was a partnership and which the plaintiff claims was an employment of Pasano by the plaintiff. Pasano had worked for the plaintiff by the hour. Upon the evidence the trial court concluded that there was no partnership but did not find the facts upon which the conclusion rests.
Upon the trial the plaintiff testified that he was a sole trader; that he made an arrangement with Pasano by which Pasano was to look up jobs; that the Langkau job was reported to plaintiff, and that the plaintiff made the contract under which the painting was done. He said:
"Mr. Pasano was along with me and told me where the people lived. He looked the job up for me. He wasn't a partner of mine. I never heard him tell any one that he was a partner of mine, and I never told any one he was a partner of mine. He got a premium of ten cents an hour more if he would get the job. That was the scale. He didn't take the job, I did it. He just canvassed the job for me."
The defendant testified that Pasano introduced Dettloff to him as Pasano's partner, to which Dettloff made no response; Dettloff and Pasano came together; the estimate was submitted on a slip which had the name of Dettloff at the top. Defendant further testified that his talk was with Pasano as to the price. The defendant's wife testified that when Pasano brought Dettloff in, Pasano said: "This is my partner, Mr. Dettloff;" that Mr. Dettloff made no response. The defendant's daughter testified to the introduction at which time she stated that Pasano said: "Meet my partner, Mr. Dettloff." Pasano testified that he told Dettloff he could get some work through the American Legion; that Dettloff told him to go ahead and it would be on a fifty-fifty basis; that the Langkau job was a partnership job. Mrs. Alfred Pasano testified that Mr. Dettloff told her that he and her husband were in partnership. One Harvey Goetchel testified that he had some painting work to be done, but told Dettloff that he could not employ them because they did not carry union cards, in response to which Dettloff said that didn't make any difference since they were partners, and that the Painters International did not require partners to have union cards. On the next day the statement as to partnership was repeated. The defendant also testified that he heard the statement made by Dettloff to Mr. Goetchel.
Dispute arises because the plaintiff claims that payment to Pasano and settlement with Pasano did not discharge defendant's obligation under the contract.
The cause was submitted for the appellant on the brief of Lloyd D. Mitchell of Oshkosh, and for the respondent on that of Barber, Keefe, Patri Horwitz, attorneys, and Dan. M. Hildebrand of counsel, all of Oshkosh.
We need not in this case be especially concerned about whether or not there existed between the plaintiff and Pasano the legal relation of copartners. The question here is, Did the adjustment and payment to Pasano by the defendant of the amount agreed upon discharge defendant's liability under the contract? The great weight of the evidence preponderates clearly and convincingly in support of the defendant's claim that Dettloff represented expressly and by acquiescence that he and Pasano were partners on this job. Such representation being made, Pasano had apparent authority, if not actual authority, to act in the matter and to receive payment.
The reason for the making of the representation has no bearing upon the question of whether or not it was made. If the plaintiff and Pasano were pretending to be partners to avoid the consequences of a violation of the rules of the Painters International, the defendant was not informed that it was a mere pretense or that the relation between them was other than that which they represented it to be. The trial court did not find that the representation was not made, but was apparently of the view that, unless a partnership in the full legal sense of that term existed, payment to Pasano did not discharge the defendant's obligation. This for the reason stated was clearly error. There are other circumstances which support defendant's contention. The first payments under the contract were made to Dettloff, who gave a receipt therefor. The defendant required Pasano to countersign these receipts. As a reasonable man he would not have done this unless he thought Pasano had an interest in the contract. While this does not appear to have been done with plaintiff's knowledge, it strongly indicates the defendant's understanding of the matter at a time when no dispute existed.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the plaintiff's complaint.