113 Kan. 413 | Kan. | 1923
The opinion of the court was delivered by
These two appeals have some common features and were consequently submitted together.
In No. 23,623, the plaintiff alleged that the defendants were partners, and that on or about May 29, 1918, he had purchased from them twenty units of oil stock, “being Watt’s Royalty Stock,” at
Defendants’ answer recited that “on and before the 29th day of May, 1918, they were partners”; and except “as above admitted” all else alleged was denied. This answer was verified.
Jury trial; evidence pro and con; verdict for plaintiff, and judgment accordingly.
Defendants assign error in the admission of evidence, apparently on the ground of variance.
The petition alleged that the stock was purchased on or about May 29; 1918. The evidence showed that half the stock was purchased at that time, and that at the same time there was some conversation between the parties to the effect that plaintiff might purchase more stock at a later date; and it was shown that the second half of the stock was bought and paid for in July. A careful reading of the record does not show that any objection on account of variance was urged in the trial court. (Emery v. Bennett, 97 Kan. 490, syl. ¶ 2, 155 Pac. 1075; Dubbs v. Haworth, 102 Kan. 603, syl. ¶ 3, 171 Pac. 624; Clark v. Insurance Co., 105 Kan. 728, 185 Pac. 1056.) The objection urged related to the issue of partnership — that there was no admission of any partnership after May 29, 1918, and that the answer had been verified. Therefore this point of variance cannot be made the basis of reversible error even if it were otherwise well taken, which need not be decided.
The next error assigned relates to the overruling of the demurrer to the evidence. This certainly cannot relate to the want of evidence to prove the contract to repurchase, for that was clearly established, notwithstanding defendants’ evidence to the contrary. The jury had the duty of determining that question. But it is argued that the verified answer was a denial of any partnership after May 29, 1918. The pleadings and defendant Crum’s own testimony, make it clear that the defendants in their verified answer did not intend to swear that there was no partnership after May 29. Such a view would cause the verification to savor of perjury, for defendant Crum’s own testimony was to the effect that the partnership was not wound up until the 6th of the following July. But aside
“Well, he — .when he came out he says, ‘Well, have you threshed?’ And I told him yes — I told him about different things, and he looked at some hogs I had, and he said, ‘Well, have you threshed — are you ready to buy some more of this Watts Royalty?’ And I said I expected I was. He says, ‘Well, you won’t go wrong about it, and you will soon get this dividend if you keep this Watts Royalty — in ninety days — sixty to ninety days, if you become dissatisfied with it, or if within a year, you will return it and you may notify Mr. L. J. Nicholson or Mr. Timms or Mr. Crum, and we will take it back and refund you what you paid for it, and you can keep the.dividend.”
Under these circumstances, the plaintiff was clearly entitled to notice of a dissolution of the partnership on July 6, and since he had no notice of it, both defendants are liable to plaintiff, and if this results in any hardship on Crum, he should look to Timms for redress or recoupment.
It is also argued that the units of oil stock were interests in land, governed by the statute of frauds. This is not correct. They were sold to plaintiff as oil stock transferrable on the books of some corporation, and of course the stock was subject to repurchase in the same way. It is also urged that the certificates were not tendered for repurchase. It was admitted that if tendered, they would have been declined. Thus a tender was unnecessary. (Smethers v. Lindsay, 89 Kan. 338, 131 Pac. 563; Grain Co. v. Elevator Co., 99 Kan. 712, 163 Pac. 450.) On no aspect of this case does it appear how a demurrer to the evidence could properly have been sustained.
In No. 23,624, the action was similar in its principal features, the only distinction being that the contract for the purchase was induced by the promise of Timms, not the partnership, to repurchase the stock within a year. The plaintiff alleged and proved his cause of action. The defendant’s answer denied and he testified in denial of any such agreement. The jury believed the plaintiff’s evidence. We find nothing approaching error in this case and can see nothing in it worthy of discussion. The judgment in No. 23,624 is therefore affirmed.