Grannell v. Wakefield
| Decision Date | 06 May 1950 |
| Docket Number | No. 37851,37851 |
| Citation | 169 Kan. 183,217 P.2d 1059 |
| Parties | GRANNELL v. WAKEFIELD. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In an action against an alleged partner for money and for an accounting, it is held the petition stated a cause of action for an accounting and a demurrer to the petition was properly overruled.
J. B. McKay, of El Dorado, and D. Arthur Walker, of Arkansas City, argued the cause and Clem H. Silvers and James B. McKay, Jr., both of El Dorado, and W. L. Cunningham, William E. Cunningham and William R. Howard, all of Arkansas City, on the briefs for appellant.
Harry O. Janicke, of Winfield, argued the cause and John A. Herlocker, of Winfield, on the briefs for appellee.
This was an action to recover money and for an accounting. The defendant's demurrer to plaintiff's petition was overruled and the defendant has appealed.
The demurrer was directed at the amended petition. On account of the argument made by the defendant, however, attention will first be paid to the original petition.
After stating the residence of the parties, the petition alleged the defendant had been engaged in the business of drilling for oil and gas and owned strings of drilling tools; that about the first of May, 1944, defendant and plaintiff entered into an oral contract, by which plaintiff agreed to act as the general superintendent of the operations of the defendant and from the revenue realized plaintiff was to receive a working salary of twelve dollars a day and one dollar a day for expenses and ten percent of the net earnings and defendant was to receive ninety percent; that defendant was to keep the books and duly account to the plaintiff; that the plaintiff was skilled in the management of rotary drilling operations and performed the agreement and defendant purchased three additional strings of tools; that plaintiff began to work under the terms of the agreement May 1, 1944, and continued so to work until June 30, 1948; that from the early part of 1945 plaintiff requested an accounting from the defendant and defendant failed to comply with these requests but in January, 1946, defendant orally stated to plaintiff that his share of the profit for 1945 had been $8,000; that during 1946 the plaintiff made many requests of defendant for an accounting and on March 12, 1948, defendant advised plaintiff that the two of them had made a profit of $39,000 for 1945 and lost $70,000 for the years following 1945; that the plaintiff demanded an itemized accounting and defendant advised him that he had an agreement drawn up which would show the relationship of the parties, but that he never showed it to plaintiff; that following the 12th of March, 1948, plaintiff demanded an accounting of the defendant and was refused and on June 30, 1948, plaintiff severed his connection with defendant; that plaintiff discovered during March that statements made to him by defendant were not true and had been made with the intent of defrauding plaintiff; that the defendant was acting in a fiduciary capacity toward plaintiff and the books and records have always been in his possession.
Plaintiff alleged he believed defendant to be indebted to him in the amount of $50,000 and he prayed for an accounting of all the drilling operations and for a judgment in that amount.
To this petition the defendant leveled a motion to strike and a motion to make definite and certain.
At the argument of this motion, counsel for the defendant argued the petition was not based upon a definite theory because it could not be told from the petition whether it was an action for wages on account of a contract between master and servant or for a dissolution of a partnership and an accounting or whether it was an action for fraud. Counsel for the plaintiff made a statement, as follows:
Before the trial court ruled on this motion the plaintiff filed an amended petition. Its allegations were substantially the same as those of the original. The defendant leveled a motion at this amended petition to require plaintiff to state the theory of his case and to strike and to make the petition definite and certain.
As to the motion to strike, defendant asked that some eight separate statements be stricken because they were immaterial or stated evidence. The trial court overruled this motion except in two particulars. The matter ordered stricken is not important to us now.
As to the motion to make definite and certain, the defendant asked that plaintiff be directed to state at what times and when defendant was to advance funds for the purchase of equipment, when and how often the defendant promised to pay plaintiff the salary alleged; what items were included in the work that was to be done for individuals and to set forth what interest, if any, the plaintiff claimed he was to own in the equipment or other property belonging to the defendant at the time the contract was made and whether plaintiff was to share in any losses sustained by the alleged partnership. The motion also stated that the defendant be directed definitely and distinctly to state his theory of the case by specifically alleging whether he claimed that plaintiff and defendant were joint adventurers or were partners or were employer and employee.
In ruling on this motion the court sustained that part which asked that plaintiff be required to state how often and when the salary and expenses were to be paid and overruled the rest. The plaintiff by interlineation at a subsequent time amended his petition by alleging that defendant was to draw the sum of $150 a month for expenses and that this was to be charged against the expenses of the operation of the partnership and that all these items had been fully paid.
Subsequent to the defendant's demurrer being filed the plaintiff asked permission to amend the amended petition by inserting at the proper place 'intending thereby to enter into a partnership or joint adventure relationship' and at another point by inserting 'and capable of and...
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