Gehlhar v. Konoske

Citation50 N.D. 256,195 N.W. 558
PartiesGEHLHAR v. KONOSKE et al.
Decision Date27 October 1923
CourtUnited States State Supreme Court of North Dakota

OPINION TEXT STARTS HERE

Syllabus by the Court.

Where two brothers and a sister entered into a joint enterprise, whereby they agreed to mutually contribute their efforts in the payment of the purchase price under a contract for a deed to a section of land taken in the names of the two brothers, and to give to the sister, in recognition of her services as housekeeper, an equal one-third interest in their rights, acquired or to be acquired, and where, soon after such engagement, one of the brothers was killed, and, pursuant to arrangements made with the surviving brother, another brother was substituted in place of the deceased brother, and thereafter, for many years, the sister contributed her services as housekeeper pursuant to the original arrangement, until completion to the satisfaction of the surviving brothers, but without knowledge of the original arrangement, so claimed, by the substituted brother, it is held, for reasons stated in the opinion:

(a) That a joint adventure was created between the original brothers and the sister, the plaintiff.

(b) That, pursuant to the arrangements made for the substituted brother, his acts and conduct, and the reception and acceptance of the sister's services, such joint adventure was continued and consummated.

(c) That, under the facts and circumstances, the sister, as a joint adventurer, is entitled to assert and enforce her rights in the section of land against the substituted brother.

Birdzell, J., dissenting.

Appeal from District Court, Stutsman County; Jansonius, Judge.

Action by Caroline Gehlhar against Herman Konoske and others. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.John A Jorgenson, of Jamestown, for appellant.

C. S. Buck, of Jamestown, for respondents Herman and Elsie Konoske.

Carr & Rittgers, of Jamestown, for W. B. S. Trimble Co.

Statement.

BRONSON, C. J.

This is an action in the nature of an action to quiet title. The subject-matter involves a controversy between a sister, as plaintiff, and a brother, as defendant, affecting a section of land in Stutsman county, N. D. In general, the complaint alleges a partnership arrangement, made in 1908, between two of plaintiff's brothers, whereby they agreed to purchase and farm this section of land; also an agreement to use the services of plaintiff as housekeeper and to give to her therefor an undivided one-third interest in the land; that in the spring of 1909 one of these brothers died, and her other brother, the defendant Herman, was substituted for him in the arrangement made; that, pursuant to such arrangement, she worked for some seven seasons, performing domestic duties for her brothers, and during such time the land was broken, farmed, and buildings erected thereon; that in November or December, 1915, plaintiff discontinued her services, and at that time the equity in the land was $12,500, and the value of her services thus rendered $4,200; that in January, 1916, defendant Herman married, and his wife took up the household duties formerly performed by plaintiff; that in July, 1916, her other brother, John, disappeared, and his whereabouts have since been unknown. Plaintiff requests a decree for an undivided one-third interest in the section, and also judgment for the value of the use of such land from 1916 until 1922.

The defendant Herman Konoske and his wife interposed an answer to the effect that in 1909, after the death of his brother, he was substituted as partner in the undertaking concerning the section; that in July, 1916, the other brother, John, disappeared; that he (the defendant) was appointed receiver of this brother's interest, and pursuant thereto he has exercised control over the interest of such brother who disappeared; that in April, 1917, the company from whom the land was purchased deeded the same to the brother who disappeared and himself, and he, as receiver and for himself, executed a mortgage to such company for $12,560; that the plaintiff has had full knowledge of all proceedings taken in connection with the partnership between his brother John and himself, and in connection with the receivership proceedings, and has not at any time, before or after the disappearance of his brother John, asserted any claim in the premises, and that by reason of her failure so to do she is estopped from claiming or asserting any right therein; that there is no written evidence of any kind setting forth the interest of plaintiff in the land. The mortgage company interposed an answer, asserting its mortgage as a first lien upon the land superior to any claims of the plaintiff or the other defendants. The priority of its lien is not disputed in the record.

The facts are:

On June 22, 1908, the defendant Trimble Company made a contract for a deed with Arthur and John Konoske, plaintiff's brothers, to sell this section of land to them for a consideration of $13,000. This contract recitedthe payment of a consideration of $200, a note for $1,000 due November 15, 1908, and another note for $11,800 due on or before October 15, 1916, which was payable, starting in 1909, by crop payments of one-half of the grain raised from year to year. At this time plaintiff was aged 17 years, Arthur 23 years, John 20 years, and defendant Herman 19 years. Then they were living with their father and mother on the father's farm, some 9 miles distant from this section in controversy. From the record it appears that on June 22, 1908, $200 was paid on this contract, and on October 5, 1908, $1,000. Subsequent payments were made as follows: In December, 1909, $1,550; in November, 1910, $460; in December, 1911, $1,200; in November, 1912, $1,456; in October, 1913, $1,500. Pursuant to the testimony of the plaintiff, during the winter of 1908-09 she made an agreement with her brothers Arthur and John to keep house for them. Then they had purchased this section. They were contemplating purchasing another section. They agreed with her that if she would stay with them, they would give to her a one-third interest in this section. She was to contribute her work as a share of the payment, they were to contribute the money as their shares of the payment, and each was to share alike in the value of the land. She agreed to stay with them until they were upon their feet. At this time this section was unbroken and had no buildings thereupon. She entered upon her duties at once. In March, 1909, plaintiff's brother Arthur was killed in an accident. Pursuant to the testimony of the mother, the brother John offered his brother, the defendant Herman, the same rights under the contract for this section involved as the deceased, Arthur, had, and the arrangement with the plaintiff, the daughter, continued the same as between her and Arthur and John. She further testified that she had a talk with John, and inquired from him if he and Herman had the same arrangement with the daughter as John and Arthur had. He advised his mother that the same arrangement held good. Pursuant to the testimony of the defendant Herman he made an arrangement with his brother John, about the 1st of April, 1909, after his brother's death. There was no written agreement. He testified:

“My brother Arthur died, and it was quite an undertaking for one; so I just stepped in his shoes.”

During the first year, 1909, she remained at the home place. Her brothers were farming this home place. During that year they broke up and put into flax this section. Her mother went over and kept house for them while they put in the crop. Afterwards they moved back to the home place. When the flax crop was harvested, she went out and kept house for the boys in a cook car. Afterwards they moved back and lived at the home place during the winter. The same performance was repeated in 1910. The home place was put in, and then they moved out and put in this section. Buildings were erected in 1910-a barn and a granary. They lived in the cook car and the granary. During the summer a well was drilled and a house built, and they moved into the house in 1910. From that time on continuously until she left, in November, 1915, she lived there on this section, with the exception of 5 weeks, when she was on a vacation. During this time she did all the household work, such as cooking, washing, cleaning, etc., without any help, excepting a Russian girl that she had in 1911, during the summer, when she was not well. For instance, during the summer of 1910, she mentions about doing housework and cooking for 12 men. In a busy season they never had less than 7 men, and sometimes up to 14, for which she was required to cook. For this work she never received any wages, excepting board and clothes. Some of her clothes she got from her sister. Gradually this land was broken up and placed under cultivation. The boys operated under the name of “Konoske Bros.” When Arthur died, there was no making over of any papers. John simply took Herman in as a partner, without any change being made in any way. Plaintiff testified that after the death of Arthur she had no talk with Herman about the arrangement she had made with John and Arthur. Her dealings were with John. She did not speak to Herman about it. After John disappeared, she did not say anything to Herman about it, until he published a notice of dissolving the partnership. Then she thought, if it was to be dissolved, she was a partner. She wrote to him to come to the house, and advised him that she wanted a settlement of her share. This was in March, 1922.

Defendant Herman testifies that, after he made this arrangement with his brother John, his sister did not say anything to him concerning any claims she had or interest in this section until she first notified him on March 21, 1922; that his brother John never at any time before his disappearance said anything about any interest his sister had in the property. Otherwise, he...

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6 cases
  • Nelson v. Mattson
    • United States
    • North Dakota Supreme Court
    • 10 Abril 2018
    ...much as property can be owned by a partnership. See id. ; see also Kelly v. Lang , 62 N.W.2d 770, 774 (N.D. 1953) ; Gehlhar v. Konoske , 50 N.D. 256, 195 N.W. 558, 561 (1923). Because the rights of a joint venture are akin to a partnership in this context, we refer to RAL Farm as a partners......
  • Nelson v. Mattson
    • United States
    • North Dakota Supreme Court
    • 10 Abril 2018
    ...much as property can be owned by a partnership. See id.; see also Kelly v. Lang, 62 N.W.2d 770, 774 (N.D. 1953); Gehlhar v. Konoske, 50 N.D. 256, 195 N.W. 558, 561 (1923). Because the rights of a joint venture are akin to a partnership in this context, we refer to RAL Farm as a partnership ......
  • Greer v. McCrory
    • United States
    • Kansas Court of Appeals
    • 14 Enero 1946
    ...in a 'barn' or granery, and later in a house erected there. She cooked, cleaned, washed and did general housework. The court said, 195 N.W. at page 562: 'We are of the opinion that upon this record a adventure was created between the brothers, John and Arthur, and their sister, the plaintif......
  • Spw Associates, Llp v. Anderson
    • United States
    • North Dakota Supreme Court
    • 18 Julio 2006
    ...see Kelly v. Lang, 62 N.W.2d 770 (N.D.1953); Brudvik v. Frosaker Blaisdell Co., 56 N.D. 215, 216 N.W. 891 (1927); Gehlhar v. Konoske, 50 N.D. 256, 195 N.W. 558 (1923). A joint venture is generally considered akin to a partnership, although more limited in scope and duration, and principles ......
  • Request a trial to view additional results

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