263 P. 1077 | Kan. | 1928
The opinion of the court was delivered by
J. M. Algeo commenced this action against the administratrix of the estate of Charles L. Algeo, deceased, to determine the existence of a partnership between plaintiff and his brother, Chas. L. Algeo, in his lifetime, and to have an accounting made of the partnership affairs as well as to recover the sum of $6,836.50, alleged to be due from the estate to plaintiff for property and assets in which the plaintiff had an interest converted and appropriated by the defendant. At the trial a verdict was returned finding for the plaintiff and awarding him $1,450 upon which judgment was entered. Defendant appeals.
Plaintiff alleged and contended at the trial that Charles L. Algeo, who had been engaged for some time in drilling oil and gas wells in the Kansas field and was then running three strings of tools, on December 20, 1919, entered into a partnership relation with his
The defendant answered with a general denial specially denying the existence of a partnership, and alleged a misjoinder of causes of action, that the action was barred by the statute of limitations, and that the plaintiff was indebted to the estate in the sum of $3,439.18.
Much testimony was taken as to the relationship between plaintiff and his brother, the ownership of an interest with the brother, and as to the value of the plaintiff’s interest in the tools which it was alleged had been converted by the defendant. At the trial the plaintiff elected to rely upon a conversion of a half interest in the tools purchased and furnished by his brother under the agreement between them. It is contended by the defendant that the evidence did not establish a partnership between the brothers, but there was testimony which tended to show admissions made by Charles L. Algeo that he had taken his brother in as a partner; that his brother had a working interest in the tools; and to another witness he admitted that Melvin had a half interest in the string of tools in a well which was being drilled. In statements of account made by the defendant and her agent to plaintiff, there was a recognition of the partnership or at least that the plaintiff had a half interest in the tools, and in these plaintiff was charged with one-half of the expenses of operating the tools.
The controversy here is largely one of fact and turns upon the question whether there was evidence to support the verdict. The working arrangement between the brothers, whatever it may be called, was one by which the plaintiff was to acquire a half interest in the tools purchased by the deceased brother when the profits of the enterprise were sufficient to pay for that interest. The relations between the brothers and the provisions of their contract, although
Some contention is made that the plaintiff had no title to the tools which warranted him in maintaining conversion. It is insisted that the title was not acquired until the tools had been paid for from the earnings, and that to maintain conversion plaintiff was required to prove ownership and right of possession at the time of the death of his brother. The finding of the jury settles the question of ownership and right of possession in the plaintiff of his half interest in the tools.
There is another contention that the action was barred, as the tools were appropriated and sold in October, 1922, and that the action was not brought until January 17,1925. It was alleged that plaintiff had fraudulently concealed her claim of entire ownership in the tools and her disposition of them, and that he did not leam of her claim or wrongful conversion until February, 1924. He brought his action within two years after the discovery of the fraud and the knowledge that his property had been misappropriated and sold. Defendant had filed an inventory in the probate court listing the tools as the property of the estate, but plaintiff had not been cited to appear in
Finding no error in the record, the judgment is affirmed.