#### Ehrlich, Appellant, vs. Brucker, Respondent.

*March 23*

April *19, 1904.*

*Partnership: Findings: Evidence: Interest.*

1. In an action to dissolve an alleged partnership and for an accounting, findings of the trial court — to the effect that no partnership ever existed between the parties; that of certain goods which plaintiff claimed to have furnished and put into the business, a part had been purchased and paid for by defendant and a part had merely been placed in defendant’s store for sale; and that defendant, having had the benefit or received the proceeds of the latter, was liable to plaintiff in a. certain sum as a balance over and above payments thereon— áre *held*to be sustained by the evidence.

*4962. Where there is no agreement to pay interest on a loan, and repayment is made on demand, the borrower is not liable for interest.

Appeal from a judgment of the circuit court for Fond du Lac County: Michael Kiewah, Circuit Judge.

*Affirmed.*

This action was commenced May 17, 1900, to dissolve a partnership alleged to have been entered into by the plaintiff and defendant April 8, 1899, and for am accounting of the net profits and business of the firm from that date to January 1, 1900. The complaint alleges, in effect, that each party was to put into the business $2,500, and that the plaintiff put in $1,000 in cash and $1,850.80 in goods, wares, and merchandise, and that in January, 1900, the defendant excluded plaintiff from the business. The defendant answered to the effect that the plaintiff and defendant had never been partners, and that no partnership agreement ever existed between them; that the defendant received $1,000' from the plaintiff, which he had repaid to her in full; that he had employed the plaintiff in his store to assist him in managing and teaching him to manage the business, and had fully paid her for her services; that while she was there she brought some “household goods” into the store, and sold the same, and received the proceeds thereof, and that the defendant received nothing therefrom; and otherwise denied each and every allegation of the complaint.

Thereupon the cause was tried, and the court found as matters of fact in effect: (1) That no partnership was formed by or existed between the plaintiff and the defendant. (2) That from April 8, 1899, to January 6, 1900, the plaintiff worked in the defendant’s store at Fond du Lac as his employee for hire, and not otherwise; that for her services so-rendered the defendant paid her as full compensation $10 per week. (3) That in March or April, 1899, the plaintiff loaned to the defendant $1,000, which sum he repaid to the-plaintiff in February or March, 1900; that no part of the *497$1,000 was put into tbe business by the plaintiff as a partner therein, nor was the same a contribution on her part to the capital invested in the business; that she loaned or deposited said $1,000 with the defendant on his promise to repay it to her on demand, and that he had repaid to the plaintiff the principal sum of $1,000. (4) That certain

goods were shipped from Chicago to the defendant’s store at Eond du Lac in May or June, 1899, and that in the plaintiff’s presence, and with her full knowledge and approval, the defendant purchased those goods from her husband, one L. B. Ehrlich, as the owner thereof, and promised to pay him for the same; that the plaintiff did not put said goods into the store of the defendant as partner or otherwise, and that she has no lawful claim or demand against the defendant on account thereof, and that the plaintiff never owned said goods. (5) That certain other goods, known as “household goods,” were removed from the plaintiff’s dwelling house at Eond du Lac to the store of the defendant in that city on or about April 8, 1899, and that said goods were placed in said store to be sold for the plaintiff’s benefit and by her or under her direction, but that the same were not put in by the plaintiff as partner in the business, nor with the understanding or agreement that said “household goods” should become a part of the stock in trade in said store in the sense that the defendant had or should have any interest in said goods, and that the defendant never had any interest in said goods, and never made any agreement with the plaintiff in respect thereto, other than she might sell them in the store for her own benefit as her own goods; that some of such “household goods” were sold from the store while the plaintiff was so in the defendant’s employment; that some of such sales were made by the plaintiff and some by others of the clerks in said store; that some of the proceeds were paid directly to the plaintiff, and were by her rightfully appropriated to her own use; that certain of the proceeds of such sales of said “house-*498bold goods” were paid over to tbe cashier of tbe store, and went into tbe store funds, and tbe defendant bad tbe benefit thereof; that when tbe plaintiff was so discharged by tbe defendant January 6, 1900, some of tbe “household goods” were left by the plaintiff in tbe store of tbe defendant, and that thereafter certain sales thereof were made, and tbe proceeds were received by tbe defendant, and applied to bis own use. (6, 7) The court being unable to. determine from tbe evidence tbe character, amount, or value of such “household goods” belonging to tbe plaintiff of which tbe defendant bad received tbe benefit, or to state tbe true account between tbe parties by reason thereof, tbe court, upon its , own motion, referred tbe matters in controversy as to such “household goods” to a circuit court commissioner, to bear, try, and determine tbe same and report thereon to tbe court, in effect, as to whether tbe defendant bad received or bad tbe benefit of any portion of such goods, and tbe amount and value thereof, and whether tbe plaintiff bad taken from tbe store or bad tbe benefit of any portion of such goods, and tbe amount and value thereof, and to state tbe account between tbe plaintiff and defendant in respect thereto; giving to tbe defendant credit for $171 paid by him to her after she was excluded from tbe store, January 6, 1900; and also to credit him for tbe amount of tbe goods sold and delivered by him to her after such last-named date, and tbe amount of tbe proceeds of sales of such “household goods” received by tbe plaintiff and appropriated by her to her own use, and charging tbe defendant with tbe proceeds of sales of such goods of which be bad tbe use and benefit, and charging him with accrued interest, if any, on tbe $1,000 mentioned.

After bearing tbe parties and considering tbe evidence in tbe case, tbe court commissioner found upon tbe questions so submitted to him as matters of fact, in effect, that tbe “household goods” mentioned in tbe findings of tbe court were of tbe aggregate value of $748.18; that they were intermingled *499by tbe plaintiff, -with tbe knowledge and consent of the defendant, with tbe goods belonging to the defendant in the store, and that it was impossible for the parties, as shown by their testimony, to identify very many of the “household goods,” or distinguish them from those belonging to the defendant; that such goods were so intermingled with the intention of both plaintiff and defendant that such goods should be sold in the store and the plaintiff receive the results of ■such sales; that it was impossible from the testimony to report each article of" the “household goods” and its value, then in the defendant’s store, or to determine whether any of such goods were still in the store; that on the trial before the referee the defendant offered to permit the plaintiff to ■select, if she could, such “household goods” as remained in the store, and to examine his books and sales slips to aid her in doing so; .that by reason of the intermingling of the “household goods” with other goods in the store it was impossible for the defendant to select the “household goods,” if any, which might have remained unsold at the time of the ■trial, in order to tender them to the plaintiff; and also impossible for the plaintiff to take advantage of the defendant’s offer to .permit her to select the “household goods” then remaining on hand; that up to the time of the trial before the referee such goods were sold by the defendant in the usual ■course of trade, with his own goods; that the defendant never agreed to pay interest on the $1,000 loaned to him by the plaintiff, and was not liable for interest thereon. The referee ■charged to the defendant the whole amount of such “household goods” so placed in the defendant’s store by the plaintiff ($748.18), less the items which had been received by the plaintiff, and'less the item of $171 paid by the defendant to ■the plaintiff, as found by the court; leaving a balance due to ■the plaintiff from the defendant of $541.58.

The court refused to modify such findings of the referee, •and denied the defendant’s motion to re-refer the cause, and *500on motion of tbe plaintiff confirmed tbe referee’s report and ordered judgment tbereon in favor of tbe plaintiff for tbe amount last above mentioned. From tbe judgment entered thereon accordingly, with costs, tbe plaintiff appeals.

For tbe appellant there was a brief by *Duffy & McOroryf*and oral argument by *J. H. McOrory.*

For tbe respondent there was a brief by *Swett & Eche,*and oral argument by *H. E. Swett.*

Cassoday, O. J.

1. Tbe important question presented is whether tbe finding of tbe trial court that no partnership ever existed between tbe plaintiff and tbe defendant is sustained by tbe evidence. There is no pretense that there was ever any written agreement or articles of copartnership. Tbe plaintiff’s claim is that she entered into an oral agreement with tbe defendant wherein and whereby they agreed to run and operate a general department store at tbe city of Fond du Lac. In her verified complaint she alleges that such agreement was made April 8, 1899. In her testimony she swears that “tbe partnership was formed about tbe last part of November, 1898,” at her bouse in tbe city; that they opened tbe store April 8, 1899, and that she was sent away January 6, 1900. There is considerable testimony tending to corroborate the plaintiff as to tbe existence of such copartnership. It consists largely in admissions or statements of tbe defendant to tbe effect that tbe plaintiff was interested in tbe business, or was bis partner. Tbe defendant flatly denied that be was ever in partnership with tbe plaintiff. Tbe circumstances were peculiar. It appears, and is undisputed, that prior to December 1, 1898, tbe plaintiff and her husband conducted a mercantile business in the store building in question in the name of B. Ehrlich — the plaintiff’s father-in-law — who at the time resided in Chicago. That building was owned by the defendant’s wife. B. Ehrlich failed in that business in November, 1898, and December 1, 1898, tbe defendant was *501appointed temporary receiver of tbe property. Tbe defendant bad bad no experience in mercantile business. He bad •some years before been a farmer and lived in tbe country ■and upon being elected sheriff bad moved into tbe city, where 'be continued to reside. Tbe result was that be employed tbe plaintiff and her husband to assist in closing out tbe business, and for that purpose tbe store building was occupied until April 1, 1899, when it was closed up. Tbe fact of that building being vacant and tbe defendant having seven grownup children, tbe oldest of which was twenty-nine years of age, and the offer of tbe plaintiff and her husband to work for him very cheaply, and buy goods for him, and teach and educate him and bis children in tbe business, induced him, .according to bis testimony, to go into tbe business in bis own name. There is much testimony tending to corroborate tbe statement of tbe defendant that be was never in partnership with tbe plaintiff. Certainly we cannot bold that tbe finding that tbe plaintiff and defendant were never in partnership is •against tbe clear preponderance of tbe evidence.

2. Of the $1,850 worth of goods which tbe plaintiff claims to have furnished and put into tbe business, she testified that $1,075 in value thereof were purchased by her of one Frank in Chicago at a discount of nearly $200 by reason of their being in broken lots and broken boxes. Tbe trial court found that said last-mentioned goods were shipped from Chicago to tbe defendant’s store in May or-June, 1899, and that tbe ■defendant, in tbe plaintiff’s presence, and with her full knowledge and approval, purchased those goods from tbe •plaintiff’s husband, as tbe owner thereof, and promised to •pay him therefor; and that tbe plaintiff did not put such .goods into tbe store as partner or otherwise; and that she had no lawful claim or demand against tbe defendant on account thereof and that tbe plaintiff never owned' said goods. Tbe defendant testified to tbe effect that be understood that tbe goods bad been bought by the plaintiff’s father-in-law in *502Chicago, who had opportunities for buying up goods for fifty* or sixty cents on the dollar, in pursuance of a conversation-which the defendant had with the old gentleman in March previous; and that the defendant agreed to pay the plaintiffs-htisband for the goods so shipped from Chicago, according to-the invoice which should be made out — being about eight or nine hundred dollars. There is considerable testimony tending to corroborate the defendant’s version of the transaction. There is some evidence tending to prove that some of the goods so shipped from Chicago were part of the goods-which formerly belonged to the plaintiff’s father-in-law. Certainly, we cannot hold that the finding of the trial court as to those goods so shipped from Chicago is against the clear preponderance of the evidence.

3. Since there never was any partnership between the-plaintiff and the defendant, it is obvious that the findings of the trial court and the referee as to the “household goods,”' so called, were in favor of the plaintiff. As indicated, the-defendant was charged with the full amount of those goods, except such as the plaintiff received or had the benefit of; and, in addition, the defendant was credited with the $171 which the court found the defendant paid to the plaintiff after she left the store January 6, 1900, leaving the balance against the defendant as found by the referee and adjudged by the court.

4. Counsel for the plaintiff claims that the evidence did not warrant this credit of $171. But just before the testimony was closed the plaintiff was recalled, and testified to the effect that after she left the store the defendant made-four cash payments, amounting in the aggregate to $171. So that finding is supported by the evidence. Prior to that time the plaintiff had testified to the effect that after she left the store she had her husband get from the defendant $500 about February 1, 1900, and $500 more about March 1, 1900. These two items make the $1,000 which the court *503found to be a repayment, of tbe $1,000 which, the plaintiff had previously loaned to the defendant. So there is no dispute as to such payments.

5. The court and referee also found that neither at tibe time of making such loan nor at any other time was there any agreement or understanding that the defendant would pay any interest thereon to the plaintiff. There is no evidence of any demand that such repayment should he made prior to the time it was actually made. There was no error in holding that the defendant was not liable for the payment of interest on such loan. *Laycock v. Parker,*103 Wis. 161, 187, 188, 79 N. W. 327.

*By the Court.*— The judgment of the circuit court is affirmed.