Jenkins v. Kirtley

• Decision Date: 11 February 1905
• Docket Number: 13,962
• Citation: 79 P. 671,70 Kan. 801
• Parties: JAMES JENKINS v. W. T. KIRTLEY
• Court: Kansas Supreme Court

79 P. 671

70 Kan. 801

JAMES JENKINS v. W. T. KIRTLEY

No. 13,962

Supreme Court of Kansas

February 11, 1905

Decided January, 1905.

Error from Pratt district court; PRESTON B. GILLETT, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PARTNERSHIP--Contract Ambiguous--Evidence of Intent. The partnership contract involved in this case is ambiguous in respect to the matter of who should furnish work teams to carry on the partnership enterprise; therefore it was proper that the court should take evidence concerning the situation and circumstances of the parties and other relevant facts as they stood when the contract was made, in order to ascertain their intention at that time and submit the question, under proper instructions, to a jury for their advice.

2. PARTNERSHIP--Action for Breach of Contract--Measure of Damages. In an action for damages for the breach of a partnership contract it is error to instruct the jury simply to the effect that they may use their own discretion in assessing the amount; the elements of damage open to consideration should be enumerated, and methods and criteria for their estimation should be indicated.

3. PARTNERSHIP--Improper Evidence. In an action founded upon a breach of contract, in which punitive damages are not recoverable, evidence that after the institution of the suit the defendant caused the plaintiff to be arrested in a criminal proceeding, from which he was subsequently discharged, is improper.

4. PRACTICE, DISTRICT COURT--Jury in Equity Suit--Motion for New Trial. In a case of purely equitable cognizance special findings by a jury whose advice the court has sought do not become effective until adopted by the court in its decision, and the time for filing a motion for a new trial should be computed from the date of that event.

William Barrett, and J. D. Houston, for plaintiff in errror.

Noble & Tincher, and Charles H. Apt, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.

In October, 1901, the plaintiff and the defendant entered into a partnership for the purpose of raising, producing, preparing for market and selling live stock and farm products, and for the purpose of dealing in live stock generally. The partnership contract was in writing. The defendant agreed to furnish land and the necessary material to keep it under fence, and money to purchase the live stock with which to begin business, and to take advantage of subsequent bargains and opportunities. The plaintiff agreed to take charge of the land and live stock, furnish and perform all labor necessary to the cultivation of the land, the planting and harvesting of crops, and the feeding and care of the live stock, and to furnish all farm implements, wagons, and harness. For moneys advanced the defendant retained a lien on the partnership property.

The next year, after the firm had accumulated considerable property, differences arose between the partners. The plaintiff brought an action for dissolution and for an accounting, and, claiming that he had been excluded from all participation in the partnership affairs, asked damages for a breach of the partnership contract. The court took the advice of a jury upon certain questions of fact, and special findings were returned to the effect that the defendant had violated the partnership agreement, to the plaintiff's damage in the sum of $ 2000. Taking this item into consideration in adjusting the partnership accounts, the court rendered judgment in favor of the plaintiff for $ 1960.45, and the defendant prosecutes error to this court.

One of the grounds of disagreement between the parties was the supplying of teams to do necessary work, the plaintiff claiming that the term "live stock" included such animals, and the defendant claiming that if teams were necessary to enable the plaintiff to perform the "labor" he had contracted to do he should furnish them. The contract undertook to enumerate the items each partner should provide. Teams for planting and cultivating crops, hauling feed and the like were not specifically mentioned, although farming implements, wagons and harness were. The terms "live stock" and "labor" when applied to the omitted subject were both ambiguous, and any arbitrary interpretation the court might place upon them might well be without the fair understanding of the parties when the contract was made. It was proper, therefore, to take evidence concerning the situation and circumstances of the parties, the nature of the contemplated enterprise and other relevant facts as they stood when the contract was...