Algeo v. Algeo

• Decision Date: 11 February 1928
• Docket Number: 27,846
• Citation: 263 P. 1077,125 Kan. 245
• Parties: J. M. ALGEO, Appellee, v. LULA D. ALGEO, as Administratrix, etc., Appellant
• Court: Kansas Supreme Court

263 P. 1077

125 Kan. 245

J. M. ALGEO, Appellee, v. LULA D. ALGEO, as Administratrix, etc., Appellant

No. 27,846

Supreme Court of Kansas

February 11, 1928

Decided January, 1928

Appeal from Sedgwick district court, division No. 3; GROVER PIERPONT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TROVER AND CONVERSION--Evidence of Wrongful and Fraudulent Conversion. A finding in an action for the wrongful and fraudulent conversion of property, in which plaintiff had a half interest, is held to have been sustained by sufficient evidence.

2. SAME--Title and Interest to Support Action. The title and interest of plaintiff in the property was sufficient to warrant him in bringing an action for the fraudulent conversion of the property.

3. LIMITATIONS OF ACTIONS--Fraud--When Action Accrues. As the action was brought for relief on the ground of concealment and fraud, of which the plaintiff had no knowledge for a considerable time, the cause of action did not accrue until the discovery of the fraud.

Charles G. Yankey, John L. Gleason and Kenneth K. Cox, all of Wichita, for the appellant.

John Madden and John Madden, Jr., both of Wichita, for the appellee.

OPINION

JOHNSTON, C. J.:

J. M. Algeo commenced this action against the administratrix of the estate of Charles L. Algeo, deceased, to determine the existence of a partnership between plaintiff and his brother, Chas. L. Algeo, in his lifetime, and to have an accounting made of the partnership affairs as well as to recover the sum of $ 6,836.50, alleged to be due from the estate to plaintiff for property and assets in which the plaintiff had an interest converted and appropriated by the defendant. At the trial a verdict was returned finding for the plaintiff and awarding him $ 1,450 upon which judgment was entered. Defendant appeals.

Plaintiff alleged and contended at the trial that Charles L. Algeo, who had been engaged for some time in drilling oil and gas wells in the Kansas field and was then running three strings of tools, on December 20, 1919, entered into a partnership relation with his brother, the plaintiff, by which it was agreed that he and his brother would buy another string of tools called a bobbed-tailed set to be used in drilling contracts they might obtain. The bobbed-tailed tools were to be paid for out of the drilling profits, and when paid for out of profits one-half of all the tools in the set were to belong to plaintiff; that afterwards the profits of the drilling business were to be equally divided between the parties. It was alleged that plaintiff was to care for all the tools of his brother that were in operation in the field and that he faithfully carried out his obligations in that respect. That in pursuance of the agreement he paid to his partner $ 700 on account of the new string of tools and gave his time, skill and experience in handling the new string as well as the other strings of tools owned by his brother. That the new string was purchased for $ 5,672.99; had been operated in drilling what was known as Ferrier well No. 6 Urschel well No. 1, and Urschel well No. 4, of the Pure Oil Company; that plaintiff was in personal charge of the operations, and that there was paid on the Ferrier well No. 6, $ 11,138; on the Urschel well No. 1, $ 10,224 and upon Urschel well No. 4 there had been paid $ 8,601.58, payment therefor having been made after the death of his brother. That the sums received, after taking out the expenses of the drilling, was over and above the amount paid for the new string of tools, and that one-half of that set became and was the property of plaintiff. It was further alleged that Charles L. Algeo died on December 19, 1920; that Lula D. Algeo was appointed administratrix of his estate, took possession of all the moneys deposited to the credit of her husband, as well as that due for the drilling done. She took possession of all the tools, including that in which the plaintiff owned a one-half interest, as the property of her husband and intentionally concealed plaintiff's ownership in the tools from the probate court. That after the Urschel well No. 4 was completed, plaintiff went to his former home in West Virginia, and the first information he received relating to the misappropriation and conversion of his interest in the tools was in December, 1923, when she sent him a statement of the money received for drilling the wells, the expense of the drilling, the money received from a sale of the tools, with a statement that a small amount was due to plaintiff. Upon receiving this statement he came back and demanded an accounting with defendant as to his interest, which was denied. Plaintiff alleged that she fraudulently prolonged the administration, representing that she was unable to make an accounting of the estate; that her agent, Kitchell, who was in charge of her business affairs, and knew of the earnings and profits of the drilling contracts, was out of the state, and that she could not settle with plaintiff until he returned. She filed her final report of the administration of the estate about January, 1924, and she had concealed plaintiff's interest and ownership in the tools. Plaintiff says that he then filed exceptions to the...