33 Kan. 326 | Kan. | 1885
The opinion of the court was delivered by
This was an action for the dissolution of a partnership and for an accounting. The evidence conduced to show that prior to March 12, 1875, there existed at Iola, in this state, a firm composed of W. E. Davis, Geo. S. Davis, and Elias Bruner, engaged in the milling business under the name of W. E. Davis & Co.; that the firm were then the owners of a grist and saw mill and certain personal property and tracts of land, all used for partnership purposes and in connection with the mill; that on March 12,1875, it was verbally agreed between the members of the firm that the plaintiff should be taken into the partnership as a member thereof, on the following terms: All the property of the partnership was valued at $12,000; each partner was to have an equal share therein; the plaintiff was to pay $3,000, but it was understood “that he was to have his share in the partnership without interest on this sum until such a time as the proceeds of the mill or business made it;” that it was further agreed among all the members that the partnership should be consummated by an entry in the journal and ledger books, setting forth that the parties had associated themselves together as partners, and the amounts invested by each member were to be shown by his credits on the ledger; that the entries upon the journal and ledger were made in accordance with this agreement; that on March 13,1875, the plaintiff was permitted to go in possession jointly with the other parties; that all the parties acted on the agreement until about the middle of November, 1882; that the partnership, after March 13, 1875, continued to do business under the firm-name of W. E. Davis & Co.; that it was the particular duty of plaintiff to keep the books of the firm, and look after such other business as he could; that at the
After the introduction of all the evidence on the part of the plaintiff, that the court would admit, the defendants interposed, and filed a demurrer thereto, upon the ground that no
To sustain this ruling, the defendants contend that the contract of March 12, 1875, being for an interest in real estate, is, as to such real estate, void, under the statute of frauds, and that, being void as to the real estate, it is also void as to the personal property and the right to become a partner, which, as defendants allege, were parts of an entire and indivisible ■contract. The proposition is conceded by the defendants, that where real estate is purchased with partnership funds, for partnership purposes, after the partnership has been formed, such real estate is to be treated as part of the partnership property, and as a consequence personal estate. It is also well settled “ that parol testimony is admissible to prove a resulting trust in relation to real estate, and that land purchased in the name of one partner, for the use and benefit of the firm, raises a resulting trust which will be enforced.” (Story’s Eq. Jur., §§ 1206-7; Scruggs v. Russell, 1 McCahon, [U. S. Ct. Kas.,] 39.) These principles are applicable to this case, and decisive against the defendants. When the plaintiff was taken into the partnership of W. E. Davis & Co., on March 12, 1875, as the firm was then in existence, in the possession of real estate, purchased for partnership purposes and then appropriated to those purposes, such real estate was partnership property, and the plaintiff, by acquiring an interest in the partnership by verbal contract, and thereafter having acted under the contract as one of the partners, with the consent of all the members, is not to be deprived of his interest in the partnership, either as to the personal property or real estate, on account of the statute of frauds. The cases establish that a partnership in any branch of trade or business may be shown by parol as an existing fact, and then whatever real estate is held for the purposes of such business is regarded as an incident thereto, and the law will imply a trust in favor of the partnership, however the lands be held in law. For an illustration, if a mercantile firm carrying on the business of
We think it is immaterial whether the real estate in this case was bought with partnership funds for partnership purposes, after the formation of the partnership, or whether a part of the real estate was put into the firm as partnership property at the formation of the new firm on March 12, 1875, if the parties have acted on the agreement and become partners. In such case, the statute of frauds ceases to be applicable. (Smith v. Tarleton, 2 Barb. Ch. 336; Bissell v. Harrington, 18 Hun, 81.)
It is further claimed on the part of the defendants, that the plaintiff was not to acquire any interest in the partnership until he paid the $3,000 agreed upon; that this was a condition precedent, and that as the plaintiff failed to pay the same, he never became a partner or had any interest in the partnership property as a partner. It is a sufficient answer to all this, that the evidence is the other v7ay; therefore, we need make no further comment upon this claim. (Christie v. Barnes, just decided.)
As the court below tried the case upon an entirely erroneous theory, it is unnecessary to refer to the various alleged errors concerning the rejection of competent evidence. We may say,
“I can’t see for the life of me that the defendant is bound under the law to produce that instrument as evidence. There are provisions of the statute which perhaps may give the plaintiff such an advantage or such a right, but there is nothing to indicate that the plaintiff has proceeded under that section of the statute, as the subpena has been issued under § 325.”
Exactly what the court meant by these remarks, it is difficult to understand, but if § 368 of the code was intended to be referred to as prescribing the method to obtain an inspection of the written memorandum, that section does not justify the action of the court. It is expressly provided therein as follows :
“ This section is not to be construed to prevent a party from compelling another to produce any book, paper or document when he is examined as a witness.”
Therefore the ruling of the court in refusing to make the witness produce the memorandum in his possession was palpably wrong, and we think the counsel for plaintiff are not far out of the way in saying, “The trial court erred almost
The motion to dismiss cannot be sustained, for, although the suggestions of amendments are not inserted in the body of the case in their appropriate places, they are attached to and made a part of the case and are placed in connection with the case. The practice, however, of thus attaching suggestions of amendments is not to be commended. It gives this court increased labor, and frequently renders an intelligible examination of the case almost impossible. (Dowell v. Williams, just decided.)
The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.