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Wisconsin Telephone Company, Respondent, v. Lehmann, d/b/a W. R. Lehmann & Son, Appellant [NO NUMBER IN ORIGINAL] Supreme Court of Wisconsin 274 Wis. 331; 80 N.W.2d 267; 1957 Wisc. LEXIS 419 November 9, 1956, Argued January 7, 1957, Decided SUBSEQUENT HISTORY: Denied March 5, 1957. [***1] Rehearing done or refrained from doing anything that it otherwise would have done, had it known the true facts of the relationship between the parties. Second, the court reasoned that there was no evidence that the telephone company would not have furnished telephone service or would have cut off service earlier had it known that the company and the individual were not partners. Third, the court reasoned there was no evidence that when the individual changed the name on the listing from his to the name of the company that the telephone company relied upon that to its detriment. OUTCOME: The court reversed the trial court's judgment with directions to dismiss the action. CORE TERMS: partnership, partner, estoppel, misleading, appearance, induced, detriment, telephone, nonsuit LexisNexis(R) Headnotes OVERVIEW: The telephone company sued the company on the theory of estoppel. The telephone company presented evidence that its employees believed that the company and an individual were partners. The court reversed the trial court's judgment and instructed the trial court to dismiss the action. The court held that the telephone company failed to establish its burden of proof by proving the elements of estoppel. First, the court reasoned that although the company might have been responsible for misleading appearances, there was no evidence that the telephone company would have not

PRIOR HISTORY: Appeal from a judgment of the Circuit Court for Jefferson County: Harry S. Fox, Circuit Judge. DISPOSITION: By the Court. -- Judgment reversed, with directions to enter judgment dismissing the complaint. CASE SUMMARY:

PROCEDURAL POSTURE: Defendant company challenged a judgment from the Circuit Court for Jefferson County (Wisconsin), which denied its motion to dismiss plaintiff telephone company's action against it seeking to hold the company liable by estoppel.

Business & Corporate Law > Agency Relationships > Establishment > Estoppel, Ostensible Agency & Necessity > General Overview Business & Corporate Law > General Partnerships > Management Duties & Liabilities > Causes of Action > General Overview [HN1] A person who is not actually a partner may render

Page 2 274 Wis. 331, *; 80 N.W.2d 267, **; 1957 Wisc. LEXIS 419, ***1 himself liable as though he were one, by so conducting himself as to reasonably induce third persons to believe that he is a partner and to act upon that belief. Business & Corporate Law > Agency Relationships > Establishment > Estoppel, Ostensible Agency & Necessity > General Overview Business & Corporate Law > General Partnerships > Formation > General Overview [HN2] See Wis. Stat. 123.13(1). Business & Corporate Law > Agency Relationships > Establishment > Estoppel, Ostensible Agency & Necessity > General Overview Business & Corporate Law > General Partnerships > Formation > General Overview [HN3] See Wis. Stat. 123.13(2). Business & Corporate Law > Agency Relationships > Establishment > Estoppel, Ostensible Agency & Necessity > General Overview Business & Corporate Law > General Partnerships > Formation > General Overview Business & Corporate Law > General Partnerships > Management Duties & Liabilities > Causes of Action > General Overview [HN4] Partnership by estoppel involves some express or implied representation by the person in question that he is a partner, in reasonable and bona fide reliance upon which the person now seeking to hold him liable as such has extended a credit, or otherwise changed his position, in such a manner that he will now be prejudiced if the representation be denied. Business & Corporate Law > Agency Relationships > Establishment > Estoppel, Ostensible Agency & Necessity > General Overview Business & Corporate Law > General Partnerships > Management Duties & Liabilities > Causes of Action > General Overview Business & Corporate Law > General Partnerships > Management Duties & Liabilities > Fiduciary Responsibilities > Duty of Good Faith & Loyalty [HN5] The party seeking to hold a party liable as a partner must, in the exercise of reasonable prudence and good faith, have relied upon such condition or thing and been misled by it. Business & Corporate Law > Agency Relationships > Establishment > Estoppel, Ostensible Agency & Necessity > General Overview [HN6] Estoppel in pais is an equitable doctrine, and in general does not operate against one unless his conduct has induced another to change his position to his prejudice. SYLLABUS Action on an account for local and long-distance telephone service rendered by plaintiff through telephone No. 196W of the Watertown exchange. The complaint alleged that the service was furnished to defendant Walter R. Lehmann. Defendant denied liability, and in his answer alleged in substance that the service was furnished to his son, Wayne R. Lehmann. The case was tried to a jury. At the close of plaintiff's case defendant moved for a nonsuit on the ground of failure of proof. The motion was denied, and at the close of defendant's evidence the case was submitted to the jury for a general verdict. The jury returned a verdict for the plaintiff, and judgment was entered thereon for the full amount claimed, $ 1,261.16, plus costs. Defendant appeals. Defendant Walter R. Lehmann lived on a farm near Watertown, and dealt in cattle as a sole trader under the widely advertised name W. R. Lehmann & Son. Apparently his son, Wayne R. Lehmann, [***2] had formerly been in business with him, but by February, 1952, had withdrawn and gone into business for himself as a dealer in calves. Wayne lived across the road from defendant, and had his business headquarters in a building on defendant's farm, over which was a sign, "W. R. Lehmann & Son -- Dairy Cattle." Telephone No. 196W was located in that building. Commencing about February, 1952, plaintiff carried phone No. 196W in the name of Wayne R. Lehmann, and it so appeared in the 1952 directory. The bills were sent to Wayne, and he paid them. In May, 1953, Wayne requested plaintiff to list phone No. 196W under the name W. R. Lehmann & Son. The change was accordingly made, and the phone was listed in the 1953 and 1954 directories under that name. After the change in listing, the monthly bills were mailed to W. R. Lehmann & Son, RR 4, Watertown (which was also Wayne's address), and were paid by checks signed by Wayne or his wife until December, 1954, when the bill was not paid. That bill, less certain credits, constitutes

Page 3 274 Wis. 331, *; 80 N.W.2d 267, **; 1957 Wisc. LEXIS 419, ***2 the account in suit. There was no evidence that Wayne Lehmann was in fact either a partner or an agent of defendant at the time when Wayne requested phone No. [***3] 196W to be listed under the name W. R. Lehmann & Son or thereafter, or thathe had any actual authority from defendant to request such listing or to obligate defendant to pay for telephone service furnished to No. 196W. Plaintiff based its case on the claim that Wayne had apparent or ostensible authority to bind his father in the premises. The case was submitted to the jury on that question, and the jury found for the plaintiff. Further facts are set forth in the opinion. COUNSEL: For the appellant there was a brief and oral argument by Bernard J. Traeger of Watertown. For the respondent there was a brief by Clifford & Fitzpatrick of Watertown, and oral argument by James A. Fitzpatrick. JUDGES: Wingert, J. OPINION BY: WINGERT OPINION [*333] [**269] While the case was tried on the theory of ostensible agency, plaintiff's actual proof was that its employees having to do with the matter believed that defendant [*334] and Wayne were partners as W. R. Lehmann & Son. We may assume for present purposes that the evidence warranted the jury in finding that there was reasonable ground for that belief, and that defendant was responsible for the misleading appearances. Nevertheless, [***4] plaintiff failed to offer any evidence that it changed its position to its detriment in reliance on that belief, and hence defendant's motion for a nonsuit should have been granted. The general principle applicable to cases of this kind is stated by a leading authority as follows: [HN1] "A person who is not actually a partner may render himself liable as though he were one, by so conducting himself as to reasonably induce third persons to believe that he is a partner and to act upon that belief. This rule is based upon the same principle as that which has been discovered in the law of Agency, -- that a person may become liable for the acts of another who was not really his agent, if he has so conducted himself as to lead others reasonably to believe that such person was his agent. It is a case in which the principle of estoppel applies." Mechem, Elements of Partnership (2d ed.), p. 90, sec. 99. See also 40 Am. Jur., Partnership, p. 180, sec. 73. The principle has been codified in the Uniform Partnership Act, under the heading "Partnership by Estoppel." Sec. 123.13, Stats., provides: [HN2] "(1) When a person, by words spoken or written or by conduct, represents himself, or consents to another [***5] representing him to any one, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership, and if he has made such representation or consented to its being made in a public manner he is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit. . . . [*335] [HN3] "(2) When a person has been thus represented to be a partner in an existing partnership . . . he is an agent of the persons consenting to such representation to bind them . . . with respect to persons who rely upon the representation. . . ." [**270] The liability of the nonpartner being based on estoppel, it is essential to the cause of action that the party asserting liability must have been induced by the misleading appearance to change his position to his detriment. "It [HN4] [partnership by estoppel] involves some express or implied representation by the person in question that he is a partner, in reasonable and bona fide reliance upon which the [***6] person now seeking to hold him liable as such has extended a credit, or otherwise changed his position, in such a manner that he will now be prejudiced if the representation be denied. . . . [HN5] "The party seeking to hold him liable as a partner must, in the exercise of reasonable prudence and good faith, have relied upon such condition or thing and

Page 4 274 Wis. 331, *335; 80 N.W.2d 267, **270; 1957 Wisc. LEXIS 419, ***6 been misled by it." Mechem, Elements of Partnership (2d ed.), pp. 90, 91, sec. 100. See also 19 Am. Jur., Estoppel, pp. 733, 736, secs. 84, 85; 40 Am. Jur., Partnership, pp. 182, 183, sec. 78. [HN6] Estoppel in pais is an equitable doctrine, and in general does not operate against one unless his conduct has induced another to change his position to his prejudice. Callaway v. Evanson, 272 Wis. 251, 254, 75 N. W. (2d) 456; Caveney v. Caveney, 234 Wis. 637, 650, 291 N. W. 818; Dixon v. Davidson, 202 Wis. 19, 24, 231 N. W. 276. Application of this principle to the evidence in the present case leads to the conclusion that there was no basis on which the jury could find for the plaintiff. There is no evidence in the record that plaintiff did anything it would not have done or refrained from doing anything that it otherwise would [***7] have done, had it known the true facts relative to the relationship between defendant and Wayne. There is no [*336] evidence that plaintiff would not have furnished the service to telephone No. 196W or would have cut it off sooner if it had known that Wayne Lehmann was not a partner or authorized agent of the defendant. The service had theretofore been rendered when the telephone was listed in Wayne's name, and there is no showing that plaintiff would not have continued to render the service as long as the bills were paid, had it known that only Wayne would be responsible for payment. There is nothing to show that in changing the listing from Wayne's name to that of W. R. Lehmann & Son, plaintiff relied in any way on defendant's credit. Since plaintiff was seeking to hold defendant liable by estoppel, it had the burden of proving the elements of estoppel. Having failed to offer any proof of change of position to its prejudice in reliance on the misleading appearance, plaintiff failed to make a prima facie case for the jury. Therefore, defendant's motion for nonsuit should have been granted. By the Court. -- Judgment reversed, with directions to enter judgment dismissing [***8] the complaint.