
    Manitowoc Portland Cement Company, Respondent, v. Schuette and others, d/b/a Schuette Builders Company, and another, Appellants.
    
      No. 294.
    
    
      Argued June 4, 1968.
    
    Decided June 28, 1968.
    
    (Also reported in 159 N. W. 2d 699.)
    
      For the appellants there was a brief by Murphy & Brady of Manitowoc, for Sehuette Builders Company, and by Everson, Whitney, O’Melia, Everson & Brehm of Green Bay, for United Pacific Insurance Company, and oral argument by Frank A. Murphy and James L. Everson.
    
    For the respondent there was a brief by Kaumheimer, Reinhart, Boerner, Van Deuren & Norris, attorneys, and Allen N. Rieselbach and Donald J. Christl of counsel, and oral argument by Paul V. Luche, all of Milwaukee.
   Robert W. Hansen, J.

If the facts are as stated in plaintiff’s affidavits, plaintiff is entitled to judgment, the act of the partner binding the partnership. If the facts are exactly as stated in defendants’ counteraffi-davits, plaintiff could not establish an authorization to apply partnership funds fo pay a corporate debt, the act not being in the usual course of business of the partnership and not binding on all partners. The issue thus arising as to material facts is not to be decided by comparing or considering the affidavits and counter-affidavits. The issues of fact presented, including the relationship between the partnership and corporation and the past dealings between the plaintiff, defendants and corporation, must be resolved before there can be an application of the statute relied upon by plaintiff and the relevant case law. The moving party in its affidavits has made out a prima facie case for summary judgment, but the opposing parties’ counteraffidavits entitle them to trial on the fact issues raised.

By the Court. — Judgment reversed. 
      
       See. 123.06 (1) and (2), Stats., defining when act of a partner hinds and when it does not bind the partnership.
     
      
      
        Viles v. Bangs (1874), 36 Wis. 131, 135; Remington v. Eastern Ry. of Minn. (1901), 109 Wis. 154, 163, 84 N. W. 898, 85 N. W. 321; Debelak Bros., Inc. v. Mille (1968), 38 Wis. 2d 373, 379, 157 N. W. 2d 644.
     
      
      
         McWhorter v. Employers Mut. Casualty Co. (1965), 28 Wis. 2d 275, 277, 278, 137 N. W. 2d 49. See also Leszczynski v. Surges (1966), 30 Wis. 2d 534, 539, 141 N. W. 2d 261.
     