117 Kan. 585 | Kan. | 1925
The opinion of the court was delivered by
On August 1, 1914, Y. F. Girardy rented three quarter sections of land to C. A. DeMoss for one year for a crop rent, the written lease containing a number of special provisions, one being that the landlord might place live stock on the land, the increase to be divided equally. DeMoss occupied the land for several years, and in the spring of 1920 executed to the Croft State Bank three notes for the aggregate amount of $1,600, secured by mortgages on cattle on the place. The bank brought this action against Girardy for the possession of the cattle under the mortgages, upon the theory that, by virtue of changes orally made in the arrangement between Girardy and DeMoss, they had become partners and that the money was borrowed in the course of the partnership business for its use. The defendant contested both propositions. The trial court sustained a demurrer to the plaintiff’s evidence, and the appeal is taken from that ruling.
By the terms of the lease Girardy was to have two-thirds of the wheat and of any other crop that might be planted by mutual agreement. He was to furnish the seed wheat for the first year, but if the lease were extended for another year the seed wheat was to be taken from the crop of 1915. He was to furnish a man to help work the land from June 1 to August 31, 1915, he paying the wages, DeMoss providing board and lodging; and if the lease were extended
The contention of the plaintiff is that by oraí agreements after-wards entered into by Girardy and DeMoss the arrangement between them was changed into one of partnership, DeMoss to manage the business and to have authority, to borrow money upon the credit of the property. DeMoss gave testimony tending to show these facts:
The two rented an additional quarter and Girardy bought another one. In November, 1915, there was about 160 acres of feed, and they bought 60 yearling steers, Girardy saying: “I will buy steers and we will share the profits and losses. If they don’t make anything, we don’t lose much, nothing but our feed.” Feed raised on the place in 1915 was fed to them. They were sold and the profits (after they were paid for) were divided, each getting half of $600 or $700. The next year (1916) over 200 acres of feed was raised and 36 head of heifers and cows were bought in December, Girardy saying: “After these cattle are paid for we will go half and half-on the cattle.” It was said if there was not enough feed grown it was to. be bought, each paying half the cost. Girardy was to furnish the money and DeMoss was to pay back half of it. They were to share the profits and losses alike. These cattle were fed from the feed raised on the place and some were sold. In two years something over $2,000 worth were sold. Girardy told DeMoss to sell the cattle and send the money to the Security bank, at Wichita “on the note,” and he did so. Girardy was in Texas most of the time, coming up once or twice a year. DeMoss rented pasture for the cattle, and Girardy later asked how much the bill was and made no objection. In the fall of 1918 Girardy told DeMoss he would give him half the wheat from then on. “He said we would be partners in all, crop, feed and cattle.” On January 26, 1919, Girardy and DeMoss
By the same liberality of construction, the evidence as against a demurrer must be held to have a tendency to show that the mortgages in controversy were given to raise money to carry on the business and that the proceeds were in part at least used for that purpose; that Girardy consented to or at least acquiesced in such arrangement, and that the bank lent its money in reliance upon the existence of a joint adventure.
The judgment is reversed and the cause remanded for further proceedings.