Bird v. Sternberg
| Decision Date | 10 May 1919 |
| Docket Number | 22,145 |
| Citation | 104 Kan. 799,180 P. 774 |
| Parties | WALTER BIRD, Appellee, v. H. E. WILCOX and CHARLES STERNBERG, Appellants |
| Court | Kansas Supreme Court |
Decided January, 1919.
Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. PARTNERSHIP -- Action for An Accounting -- Pleadings. The petition considered, and held to state a cause of action by an excluded partner for a partnership accounting and for recovery from his associates of his share of the proceeds of the partnership business, notwithstanding omission of a formal allegation of the existence of a partnership.
2. SAME--Agreement Not in Writing--Statute of Frauds. The partnership agreement was not in writing, and the partnership business consisted in procuring and then selling oil and gas leases. Held, recovery was not barred by the fourth clause of the sixth section of the statute of frauds.
3. TRIAL--No Error in Proceedings. The proceedings considered and held to be free from error prejudicial to the defendants.
J. B. Tomlinson, of Independence, for the appellants.
A. L. Billings, of Independence, for the appellee.
The action was one by an excluded partner for an accounting and for recovery from his associates of his share of proceeds of the business. The plaintiff recovered, and the defendants appeal.
While the charging part of the petition did not use the word partners, or the word partnership, it stated in full the facts concerning the relationship of the parties, and disclosed a partnership. Besides this, the petition alleged a demand for a partnership settlement and accounting, and the prayer for relief contained the characteristic words of a petition for relief respecting partnership affairs. Consequently, it was proper for the court to instruct the jury on the subject of partnership.
The partnership agreement was not in writing. The partnership business consisted in procuring oil and gas leases from landowners, and then selling the leases. The action was for recovery of proceeds of leases which had been procured and sold. While the leases themselves were, as between lessor and lessee, within the fourth clause of the sixth section of the statute of frauds (Gen. Stat. 1915, § 4889), because real estate was involved, that clause did not apply to the personal relations and obligations created by the agreement to deal in such instruments and...
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McCrae v. Bradley Oil Co.
... ... alone by deed, is not within the statute." See ... Huston v. Cox, 103 Kan. 73, 172 P. 992; Bird ... v. Wilcox, 104 Kan. 799, 180 P. 774; Shoemake v ... Davis, 146 Kan. 909, 73 P.2d 1043 ... In ... Bresee v. Robinson, 236 Mich ... ...
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Potucek v. Blair
...or coadventurers to deal in such instruments between themselves and to divide the profits resulting from the venture. Bird v. Wilcox, 104 Kan. 799, 180 P. 774; Goodrich v. Wilson, 106 Kan. 452, 454, 188 P. Appellant assets if the oral contract be held valid as to oil and gas leases and leas......
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Shoemake v. Davis
...statute of frauds, because it dealt with the personal relations of joint adventurers, and not with the sale of real estate. Bird v. Wilcox, 104 Kan. 799, 180 P. 774; Goodrich v. Wilson, 106 Kan. 452, 188 P. 225; v. Johnson, 89 Kan. 21, 130 P. 655." Other authorities are to the same effect. ......
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Goben v. Barry
...of Frauds applies to the leases themselves. See Potucek v. Blair, 176 Kan. 263, Syl. p 4, 270 P.2d 240 (1954), and Bird v. Wilcox, 104 Kan. 799, 180 Pac. 774 (1919). Therefore, while the lease arrangement must be written, the contract to enter into a partnership to procure leases need not B......