Overlander v. Overlander

119 Kan. 348 | Kan. | 1925

The opinion of the court was delivered by

Harvey, J.:

This is an appeal by defendant from an order overruling his demurrer to plaintiff’s petition. The petition avers that plaintiff and the defendant and John E., Charles L. and Jesse L. Overlander were the owners in fee of certain farm land in Doniphan county; that in the year 1919 the defendant, acting for and claiming to act for plaintiff, rented the land to a tenant for grain rent and cash rent; that he collected such rents and accounted to this plaintiff for only a portion of plaintiff’s share of such rent, and has failed and refused to account to plaintiff for $200 due from defendant to plaintiff on his share of the rent of the premises for that year. There are similar allegations, with varying amounts, for the years 1920, 1921, 1922 and 1923.

In a second cause of action plaintiff averred that defendant was negligent in caring for and marketing the landlord’s portion of the crop from the land for certain years, to plaintiff’s damage in a stated sum. It is further averred the defendant claims to have made expenditures for improvements on'the premises and to have paid taxes on the land in behalf of plaintiff, that plaintiff has asked for an accounting, which defendant has refused. The prayer is for an accounting and the sum alleged due plaintiff.

To this petition defendant demurred, for the reasons: First, that there is another action pending between the parties concerning the same subject matter in the supreme court of the state of New York, New York county, in which the issues have been joined. Second, that the court is without jurisdiction of the subject matter, for the reason that upon the face of the petition recovery is sought of plaintiff as trustee rising from the sale of personalty, and nowhere does it appear that the fund is within the state of Kansas, or plaintiff’s inability to follow the fund, if elsewhere, or where the money constituting the trust fund may be found. Third, for misjoinder of cause of action in that defendant is charged, in a representative capacity, with the duties of administrator of the estate of Rufus B. Overlander, deceased, as agent of the administrator, individually, in his own personal right, and as trustee of the fund claimed by plaintiff. It is further contended that the respective causes of action do not contain a sufficient statement of facts to constitute a cause of action.

As to the first ground of demurrer, there is nothing in the petition filed by plaintiff to indicate that there is another action pending anywhere between these parties involving the subject matter, hence the demurrer on that point is not good. The second and third grounds of demurrer are not good for the reason that there is nothing in- the petition to show that defendant is being sued otherwise than in his .individual capacity for moneys received while representing and claiming to represent the plaintiff. The demurrer, on the ground that the petition in its respective counts did not set forth facts sufficient to constitute a cause of action, was properly overruled. As to the first count in the petition, it is argued it does not state the total rents received by defendant and plaintiff’s share thereof, and how much has been paid. The petition could have been more specific in these particulars, but this does not render it demurrable. It is also argued that the petition does not take into account expenses, taxes, etc., paid by plaintiff properly deductible from the rents. These are matters of defense which may be set up in the answer and determined.

The judgment of the court below will be affirmed.