Ciesielski v. Nowacki

39 Kan. 340 | Kan. | 1888

Opinion by

Clogston, C.;

But one question is presented by the record. Plaintiff below alleged that he performed certain labor for the defendant, and that said labor was reasonably worth the sum charged. The defendant, in answer, alleged, first, a general denial; and second, that plaintiff and defendant were, at the time of the performance of the work and labor set out in plaintiff’s bill of particulars, partners engaged in the blacksmith, machine and repairing business; that said partnership had not been dissolved; and that no accounting or settlement had been had between the partners. In addition to this, defendant alleged that he had expended certain moneys in the purchase of tools, stock, and shop, and that plaintiff was to repay him said amount so invested, and the surplus or profits thereafter were to be equally divided between the plaintiff and defendant; and he alleged that said plaintiff was indebted to him in a sum over and above all work, labor, and money, done, furnished or performed by the plaintiff, and for which sum he asked judgment. No reply was filed to this answer. Trial was had upon said bill of particulars and answer. No objection was made to the introduction of evidence; no question was raised because the answer was not denied, and no demand for judgment on the pleadings. Plaintiff in error now insists that, as his answer was not .denied under oath, it must be taken as true, and that the question of partnership, being the bone of contention between them, if established, the plaintiff below could not recover. This point may be. conceded. The allegation of the partnership was admitted unless denied under oath by the plaintiff; but the want of this denial could be waived by the defendant below, and by his silence it was so waived. He made no objection to the introduction of evidence; in fact, it was treated by the parties and by the court as if the answer had been denied. And an accounting was had between the plaintiff and defendant upon their entire transactions; so, if it was admitted that there was a partnership, and that partnership was not denied under oath, and not waived, then by the answer of the defendant all the questions were put in issue as if it had been an action for an accounting between partners, and a full accounting was had; and a judgment on such an accounting is conclusive. This being the only error raised, we think the judgment of the court below was correct. It is therefore recommended that it be affirmed.

By the Court: It is so ordered.

All the Justices concurring.