178.06 History
History: 1993 a. 482;
1997 a. 35.
178.06 Annotation
When one partner repeatedly entered into renewals of an employment contract with a pharmacist to operate a drug store without objections by the other partners, the contract was valid even though highly favorable to the employee, so long as the partner received no personal benefit that the other partners did not share. Reliable Pharmacy v. Hall,
54 Wis. 2d 191,
194 N.W.2d 596 9172).
178.06 Annotation
When a partner's actions in real estate a transaction on behalf of a partnership fall within the express provisions of s. 178.06 (1), a partner who acts on behalf of the partnership is "an agent of the partnership" and s. 178.06 (1) controls. When the partner's actions do not fall within those provisions, the partner "purports to act as an agent," and s. 706.03 controls. Wyss v. Albee,
193 Wis. 2d 101,
532 N.W.2d 444 (1995).
178.07
178.07
Conveyance of real property of partnership. 178.07(1)(1) Where title to real property is in the partnership name, any partner may convey title to such property by a conveyance executed in the partnership name; but the partnership may recover such property unless the partner's act binds the partnership under the provisions of
s. 178.06 (1), or unless such property has been conveyed by the grantee or a person claiming through such grantee to a holder for value without knowledge that the partner, in making the conveyance, has exceeded the partner's authority.
178.07(2)
(2) Where title to real property is in the name of the partnership, a conveyance executed by a partner, in the partner's own name, passes the equitable interest of the partnership, provided the act is one within the authority of the partner under
s. 178.06 (1).
178.07(3)
(3) Where title to real property is in the name of one or more but not all the partners, and the record does not disclose the right of the partnership, the partners in whose name the title stands may convey title to such property, but the partnership may recover such property if the partners' act does not bind the partnership under
s. 178.06 (1), unless the purchaser or the purchaser's assignee is a holder for value, without knowledge.
178.07(4)
(4) Where the title to real property is in the name of one or more or all the partners, or in a third person in trust for the partnership, a conveyance executed by a partner in the partnership name, or in the partner's own name, passes the equitable interest of the partnership, provided the act is one within the authority of the partner under
s. 178.06 (1).
178.07(5)
(5) Where the title to real property is in the names of all the partners a conveyance executed by all the partners passes all their rights in such property.
178.07 History
History: 1993 a. 482.
178.08
178.08
Admission by partner is evidence against the partnership. An admission or representation made by any partner concerning partnership affairs within the scope of the partner's authority as conferred by this chapter is evidence against the partnership.
178.08 History
History: 1993 a. 482.
178.09
178.09
Notice to or knowledge of partner charges partnership. Notice to any partner of any matter relating to partnership affairs, and the knowledge of the partner acting in the particular matter, acquired while a partner or then present to the partner's mind, and the knowledge of any other partner who reasonably could and should have communicated it to the acting partner, operate as notice to or knowledge of the partnership, except in the case of a fraud on the partnership committed by or with the consent of that partner.
178.09 History
History: 1993 a. 482.
178.10
178.10
Partnership liable for wrongful act of partner. Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of the partner's copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.
178.10 History
History: 1993 a. 482.
178.11
178.11
Partnership liable on partner's breach of trust. The partnership is bound to make good the loss if any of the following occurs:
178.11(1)
(1) One partner acting within the scope of his or her apparent authority receives money or property of a 3rd person and misapplies it.
178.11(2)
(2) The partnership in the course of its business receives money or property of a 3rd person and the money or property so received is misapplied by any partner while it is in the custody of the partnership.
178.11 History
History: 1993 a. 482.
178.12
178.12
Liability of partners. 178.12(1)
(1) Except as provided in
sub. (2), all partners are liable:
178.12(1)(b)
(b) Jointly for all other debts and obligations of the partnership, but any partner may enter into a separate obligation to perform a partnership contract.
178.12(2)
(2) Except as provided in
sub. (3), a partner in a registered limited liability partnership is not personally liable directly or indirectly, or by way of indemnification, contribution, assessment or otherwise, for any debt, obligation or liability of the partnership, whether in tort, contract or otherwise, and including any debt, obligation or liability arising from omissions, negligence, wrongful acts, misconduct or malpractice, arising while the partnership is a registered limited liability partnership.
178.12(3)
(3) Subsection (2) does not affect the liability of a partner in a registered limited liability partnership for any of the following:
178.12(3)(a)
(a) The partner's own omissions, negligence, wrongful acts, misconduct or malpractice.
178.12(3)(b)
(b) The omissions, negligence, wrongful acts, misconduct or malpractice of any person acting under the partner's actual supervision and control in the specific activity in which the omissions, negligence, wrongful acts, misconduct or malpractice occurred.
178.12(3)(c)
(c) Any other debts, obligations and liabilities resulting from the partner's acts or conduct other than as a partner.
178.12(4)
(4) A partner in a registered limited liability partnership is not a proper defendant in a proceeding to recover damages or to enforce obligations of the type described in
sub. (2) unless the partner is alleged in good faith to be personally liable under
sub. (3).
178.12 History
History: 1995 a. 97.
178.13
178.13
Partnership by estoppel. 178.13(1)
(1) When a person, by words spoken or written or by conduct, represents himself or herself, or consents to another representing him or her to anyone, as a partner in an existing partnership or with one or more persons not actual partners, he or she 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 or she has made such representation or consented to its being made in a public manner, he or she is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made, as follows:
178.13(1)(a)
(a) If a partnership liability results, he or she is liable as though he or she were an actual member of the partnership.
178.13(1)(b)
(b) If no partnership liability results, he or she is liable jointly with the other persons, if any, so consenting to the contract or representation as to incur liability, otherwise separately.
178.13(2)
(2) When a person has been thus represented to be a partner in an existing partnership, or with one or more persons not actual partners, that person is an agent of the persons consenting to such representation to bind them to the same extent and in the same manner as though that person were a partner in fact, with respect to persons who rely upon the representation. Where all the members of the existing partnership consent to the representation, a partnership act or obligation results; but in all other cases it is the joint act or obligation of the person acting and the persons consenting to the representation.
178.13 History
History: 1993 a. 482;
1997 a. 254.
178.14
178.14
Liability of incoming partner. A person admitted as a partner into an existing partnership is liable for all the obligations of the partnership arising before that person's admission as though that person had been a partner when such obligations were incurred, except that this liability shall be satisfied only out of partnership property.
178.14 History
History: 1993 a. 482.
178.15
178.15
Rights and duties of partners. The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the following rules:
178.15(1)
(1) Each partner shall be repaid that partner's contributions, whether by way of capital or advances to the partnership property and share equally in the profits and surplus remaining after all liabilities, including those to partners, are satisfied; and, except as provided in
s. 178.12 (2), each partner must contribute towards the losses, whether of capital or otherwise, sustained by the partnership according to that partner's share in the profits.
178.15(2)
(2) The partnership must indemnify every partner in respect of payments made and personal liabilities reasonably incurred by him or her in the ordinary and proper conduct of the partnership's business, or for the preservation of the partnership's business or property.
178.15(3)
(3) A partner, who in aid of the partnership makes any payment or advance beyond the amount of capital which he or she agreed to contribute, shall be paid interest from the date of the payment or advance.
178.15(4)
(4) A partner shall receive interest on the capital contributed by him or her only from the date when repayment should be made.
178.15(5)
(5) All partners have equal rights in the management and conduct of the partnership business.
178.15(6)
(6) No partner is entitled to remuneration for acting in the partnership business, except that a surviving partner is entitled to reasonable compensation for his or her services in winding up the partnership affairs.
178.15(7)
(7) No person can become a member of a partnership without the consent of all the partners.
178.15(8)
(8) Any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners; but no act in contravention of any agreement between the partners may be done rightfully without the consent of all the partners.
178.15 History
History: 1993 a. 482;
1995 a. 97.
178.16
178.16
Partnership books. The partnership books shall be kept, subject to any agreement between the partners, at the principal place of business of the partnership, and every partner shall at all times have access to and may inspect and copy any of them.
178.17
178.17
Partners must render information. Partners shall render on demand true and full information of all things affecting the partnership to any partner or the legal representative of any deceased partner or partner under legal disability.
178.18
178.18
Partner accountable as fiduciary. 178.18(1)
(1) Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him or her without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him or her of partnership property.
178.18(2)
(2) This section applies also to the representatives of a deceased partner engaged in the liquidation of the affairs of the partnership as the personal representatives of the last surviving partner.
178.18 History
History: 1993 a. 482.
178.19
178.19
Right to an account. Any partner shall have the right to a formal account as to partnership affairs in any of the following circumstances:
178.19(1)
(1) If that partner is wrongfully excluded from the partnership business or possession of its property by his or her copartners.
178.19(2)
(2) If the right exists under the terms of any agreement.
178.19(4)
(4) If other circumstances render it just and reasonable.
178.19 History
History: 1993 a. 482.
178.20
178.20
After fixed term partnership continues as partnership at will. 178.20(1)(1) When a partnership for a fixed term or particular undertaking is continued after the termination of such term or particular undertaking without any express agreement, the rights and duties of the partners remain the same as they were at such termination, so far as is consistent with a partnership at will.
178.20(2)
(2) A continuation of the business by the partners or such of them as habitually acted therein during the term, without any settlement or liquidation of the partnership affairs, is prima facie evidence of a continuation of the partnership.
178.21
178.21
Property rights of partner. 178.21(1)
(1) The property rights of a partner are that partner's rights in specific partnership property, that partner's interest in the partnership, and his or her right to participate in the management.
178.21(2)
(2) A partner is co-owner with the other partners of specific partnership property holding as a tenant in partnership.
178.21(3)
(3) The incidents of this tenancy are such that:
178.21(3)(a)
(a) A partner, subject to the provisions of this chapter and to any agreement between the partners, has an equal right with the other partners to possess specific partnership property for partnership purposes; but a partner has no right to possess such property for any other purpose without the consent of the other partners.
178.21(3)(b)
(b) A partner's right in specific partnership property is not assignable except in connection with the assignment of the rights of all the partners in the same property.
178.21(3)(c)
(c) A partner's right in specific partnership property is not subject to attachment or execution, except on a claim against the partnership. When partnership property is attached for a partnership debt the partners, or any of them, or the representatives of a deceased partner, cannot claim any right under the homestead or exemption laws.
178.21(3)(d)
(d) On the death of a partner the partner's right in specific partnership property vests in the surviving partner or partners, except where the deceased was the last surviving partner, when the partner's right in such property vests in the partner's legal representative. Such surviving partner or partners, or the legal representative of the last surviving partner, has no right to possess the partnership property for any but a partnership purpose.
178.21(3)(e)
(e) A partner's right in specific partnership property is not subject to elective rights under
s. 861.02 (1) of a surviving spouse or to allowances to a surviving spouse, heirs, or next of kin.
178.21 Note
NOTE: As to sub. (3) (e), see notes in
1985 Wis. Act 37, marital property trailer bill.
178.22
178.22
Partner's interest in partnership. A partner's interest in the partnership is the partner's share of the profits and surplus, and the same is personal property.
178.22 History
History: 1993 a. 482.
178.23
178.23
Assignment of partner's interest. 178.23(1)
(1) A conveyance by a partner of the partner's interest in the partnership does not of itself dissolve the partnership, nor, as against the other partners in the absence of agreement, entitle the assignee, during the continuance of the partnership, to interfere in the management or administration of the partnership business or affairs, or to require any information or account of partnership transactions, or to inspect the partnership books; but it merely entitles the assignee to receive in accordance with the assignee's contract the profits to which the assigning partner would otherwise be entitled.
178.23(2)
(2) In case of a dissolution of the partnership, the assignee is entitled to receive the assignor's interest and may require an account from the date only of the last account agreed to by all the partners.
178.23 History
History: 1993 a. 482.
178.23 Annotation
A partner's interest in partnership property is assignable by inter vivos gift, provided the the elements of such a gift are established. Estate of Schreiber,
68 Wis. 2d 135,
227 N.W.2d 917 (1992).
178.24
178.24
Partner's interest chargeable as such with judgment lien. 178.24(1)(1) On due application to a competent court by any judgment creditor of a partner, the court which entered the judgment, order or decree, or any other court, may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later appoint a receiver of the debtor partner's share of the profits, and of any other money due or to fall due to the debtor partner in respect to the partnership, and make all other orders, directions, accounts and inquiries which the debtor partner might have made, or which the circumstances of the case may require.
178.24(2)
(2) The interest charged may be redeemed at any time before foreclosure, or in case of a sale being directed by the court may be purchased without thereby causing a dissolution:
178.24(2)(a)
(a) With separate property, by any one or more of the partners; or
178.24(2)(b)
(b) With partnership property, by any one or more of the partners with the consent of all the partners whose interests are not so charged or sold.
178.24(3)
(3) Nothing in this chapter shall be held to deprive a partner of the partner's right, if any, under the exemption laws, as regards the partner's interest in the partnership.
