Denison v. Keiser

Decision Date10 June 1912
Citation148 S.W. 1023,104 Ark. 94
PartiesDENISON v. KEISER
CourtArkansas Supreme Court

Appeal from Independence Circuit Court; R. E. Jeffery, Judge reversed.

Judgment reversed and cause remanded.

Ernest Neill, Frank Pace and McCaleb & Reeder, for appellant.

1. The statement of plaintiff's attorney that defendant admitted that a partnership existed between Denison and Kilpatrick Bros., to which defendant objected, was highly prejudicial error, and the court erred in refusing to withdraw it, and in refusing to instruct the jury not to consider it. 76 Ark 430; 82 Id. 432, 440; 139 S.W. 287-9; 74 Ark. 489; 75 Id. 577; 74 Id. 256; 63 Id 174.

2. There being no evidence to sustain the statement of the attorney, it was error to permit it to go to the jury. 72 Ark. 427; Ib. 461; 63 Id. 174; 71 Id. 427; 74 Id. 210.

3. There was no evidence to establish a partnership between appellant and Kilpatrick Bros., nor any holding out by appellant, nor any representations made by him which would estop him from denying liability. 133 F. 462; 85 Ala. 19; 6 Col. App. 334; 58 Conn. 413; 63 Kan. 733; 129 Mo. 439; 5 Mont. 438; 51 N.J.L. 103; 37 N.Y.S. 751; 61 Neb. 541.

An estoppel must be pleaded. 12 Ark. 769; 72 Id. 62. See 53 Ark. 196; 80 Id. 23; 32 Id. 739; 29 Id. 535.

Wright Bros., of Missouri, for appellee.

OPINION

MCCULLOCH, C. J.

This is an action instituted in the circuit court of Independence County by the plaintiff, J. F. Keiser, against defendant, Walter H. Denison, to recover a balance of $3,175.45 alleged to be due for work performed in the construction of a railroad in the State of Kansas. The contract under which plaintiff did the work was made with Kilpatrick Bros., a firm of railroad contractors, who had the contract for constructing the road of the Topeka & Northwestern Railway Company, and it is alleged that the defendant was a partner of Kilpatrick Bros. in the particular part of the construction work which was sublet to the plaintiff, or that the defendant held himself out to the plaintiff as being a partner. The defendant in his answer denied that he was a partner with Kilpatrick Bros., or that he held himself out to the plaintiff or any one else as such, but alleged that the contract for this particular work was sublet to him (defendant) and his partner, one Shafter, by Kilpatrick Bros., and afterwards taken away from them and relet by said principal contractors to the plaintiff; that defendant and his partner, Shafter, entered into an arrangement with Kilpatrick Bros. that they were to superintend the work performed by plaintiff and furnish him supplies from their store, and that, in consideration of such service in superintending the work, Kilpatrick Bros. would guaranty payment of plaintiff's supply bill. After entering an explicit denial as to there being a copartnership with Kilpatrick Bros. or any holding out of such fact to plaintiff, the answer also contains a denial that Kilpatrick Bros. are indebted to plaintiff in any sum, and it is alleged that the plaintiff has been overpaid in the sum of $1,679.38 for the work which he performed under said contract. In another paragraph it is alleged that in the contract between plaintiff and Kilpatrick Bros. it was stipulated that the work should be done under the supervision of the engineer of the railway company, whose decision as to the amount and quality of the work should be binding upon both parties, and that all the work approved by said engineer had been paid for according to the latter's estimates. Defendant made a separate paragraph of his answer a cross complaint, in which he asked that, should the facts stated in his answer "be so construed as to constitute a partnership between the said Denison and Shafter and the said Kilpatrick Bros., or, should such partnership be established by testimony or otherwise, then and in that event the said plaintiff, James F. Keiser, is indebted to them in the sum of $1,679.38" for the amount overpaid as aforesaid, and there was a prayer for the recovery of that amount. No objection was made by the plaintiff to this form of pleading or to the lack of parties to the cross complaint, and a trial was had upon the issues thus tendered. The jury returned a verdict in favor of the plaintiff, and defendant has appealed.

The transaction out of which this litigation arose occurred in the year 1906, and the work performed by plaintiff was completed in March, 1907. The evidence establishes the fact that Kilpatrick Bros. & Collins was a Nebraska corporation, but that the contracts for construction work in the State of Kansas were made in the name of Kilpatrick Bros., a firm composed of W. H., R. J. and S.D. Kilpatrick. That firm had the principal contract for the construction of the road of the Topeka & Northwestern Railway Company from the town of Onaga to the town of Marysville in the State of Kansas. Denison & Shafter, a firm of which defendant was a member, were railroad contractors, and they negotiated for a subcontract for the construction of about nine miles of the road. Four miles of this was subsequently relet by Kilpatrick Bros. to the plaintiff, and the work was done under the supervision of defendant Denison, the place of business of Denison & Shafter being near the town where the work was being done.

The plaintiff contends that defendant, Denison, was a partner with Kilpatrick Bros. in this particular work, and this is denied by defendant, who testified that he was not a partner and never was interested with Kilpatrick Bros. in any work, but that he merely superintended the work done by plaintiff in consideration...

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