Krapp v. Aderholt

42 Kan. 247 | Kan. | 1889

The opinion of the court was delivered by

Horton, C. J.:

Aderholt sued Krapp in the district court for a settlement of partnership aifairs. He alleged a partnership in the butchering business, commencing the 26th of May, 1886; that on the 19th of August, 1886, Krapp forcibly excluded and ejected him from their place of business, and soon after notified all persons not to pay to him any accounts due the firm. The answer, which was a general denial, was verified. The cause was referred with consent of the parties to a referee, who was directed to hear and report upon the issues of fact in the case. The referee reported Aderholt indebted to Krapp in the sum of $2.49. This result was obtained by allowing Krapp $100 as damages for the failure of Aderholt to furnish $385, his part of the money to carry on the business of the firm. The referee also allowed Krapp interest on $385 at seven per cent., amounting to $17.97. The trial court subsequently modified the report by striking out the $100 damages allowed to Krapp, and entered judgment in favor of Aderholt and against Krapp for $97.51.

None of the testimony before the referee is preserved in the record. We have already held that the finding and report of the referee is not conclusive — it is subject to an examination and review by the court. The referee is but an officer of the court, and the court has supervision and control of all its officers and their proceedings; it can set aside, or confirm, or modify the report of a referee. (Hottenstein v. Conrad, 9 Kas. 435; Owen v. Owen, 9 id. 91.) Here it modified the report by striking out damages, which ordinarily cannot be allowed, unless there is such a special agreement as to stipulate damages. Interest upon the money that Aderholt failed to furnish is probably the only damage that Krapp is entitled to. This was allowed him. No special agreement between the parties, as to extra or unusual damages for failing to furnish any part of the partnership money, is in the record. The finding of $100 of damages in favor of Krapp was more a conclusion of law than a finding of fact. The referee was directed to report the facts, not his conclusions of law. Even if the court gave a wrong reason for rejecting the claim for damages, if its judgment is right upon the findings of fact this court will not interfere.

Upon the record as presented, there was no error in refusing to permit Krapp to amend his answer by claiming damages.

The judgment of the district court will be affirmed.

All the Justices concurring.