Jones v. Davies

• Decision Date: 11 March 1899
• Docket Number: 11128
• Citation: 60 Kan. 309,56 P. 484
• Parties: W. MARTIN JONES, Executor, etc., v. BENJAMIN M. DAVIES
• Court: Kansas Supreme Court

56 P. 484

60 Kan. 309

W. MARTIN JONES, Executor, etc., v. BENJAMIN M. DAVIES

No. 11128

Supreme Court of Kansas

March 11, 1899

Decided January, 1899.

Error from Shawnee district court; Z. T. HAZEN, judge.

Judgment reversed and cause remanded.

Troutman & Stone, for plaintiff in error.

A Bergen, for defendant in error.

OPINION

JOHNSTON, J.:

In this action the plaintiff sought to charge Benjamin M. Davies as a partner and to recover an alleged partnership liability of $ 9507. It appears that on November 15, 1886, W. E. Swift, F E. Holliday, A. P. Bowman, Joseph Freeman and A. B. Quinton purchased from Jacob Skillman for speculation and profit four lots in the city of Topeka for the sum of $ 14,000, making a cash payment of $ 3000, leaving $ 11,000 to be paid in four installments of $ 2750 each. No partnership articles or written contract were made between the purchasers, but it was agreed that Swift and Holliday each held a one-fourth interest, and that each of the remaining parties held a one-sixth interest. On this basis each of the parties contributed his share to the cash payment of $ 3000, and the understanding between them was that on all other and further payments of purchase-price, interest, taxes and other incidental expenses each of the parties was to contribute according to his respective interest, and that all profits that might be realized from a sale of the lots or any part of them should be divided among them according to the respective interest of each. For convenience it was mutually agreed that a deed from Skillman should be taken in the name of one of the partners, W. E. Swift, and that Swift and his wife should execute a mortgage on the property to secure the deferred payments.

It was understood that any of the parties could sell or transfer his interest in the adventure without consulting the others, and upon the transfer of an interest it was the practice of W. E. Swift to give a statement or certificate that such interest had been transferred. On December 28, 1887, Davies purchased the interest of Quinton, and at the time of the purchase Swift gave Davies a certificate to the effect that Davies was the owner of a one-sixth interest in the lots, describing them, and that they were taken subject to a like proportion of the $ 11,000 incumbrance on them. After that time the other parties recognized Davies as the owner of the Quinton share, and he contributed from time to time his pro rata share of the taxes levied against the property, and also his share of the interest accruing upon the unpaid purchase-money which was secured by the Swift mortgage. Quinton purchased the share of Freeman and was thereby continued as a party in the venture. After Davies purchased an interest in the enterprise a sale of the lots was made for $ 24,000, and a cash payment of $ 3000 was then made, but the purchaser failing to pay the balance of the purchase-price his rights under the contract were forfeited. The cash payment of $ 3000 was received by Swift and Holliday, who acted for all the parties in collecting and disbursing the funds in connection with this enterprise, and after paying certain expenses the balance of the $ 3000 was divided among the parties, and Davies accepted and appropriated his share of that fund. An offer of $ 18,000 for the lots was made, but this offer the parties interested refused.

The parties continued to pay the taxes and other expenses incidental to the enterprise up to and including the year 1892, but afterward default was made in the payment of the interest and purchase-money, and an action of foreclosure was begun against W. E. Swift and wife. On motion of Swift, his associates, Holliday, Bowman, Quinton, and Davies, were brought in as defendants, Swift alleging that they were all partners in the enterprise, and that each was liable as a partner for the unpaid purchase-money for which the action was brought. Personal service was obtained on Holliday and Quinton, and a judgment against them for the full amount of the purchase-money was rendered, but Davies and Bowman, being non-residents, were only served by publication, and hence no personal judgment was rendered against either of them. Under the foreclosure this property was sold for $ 2000 and credited upon the judgment rendered in that case, and in September, 1895, Swift and Holliday paid to the plaintiff the sum of $ 5000, and were thereby released from any further liability on the judgment rendered in that case. It does not appear that the parties interested in the original purchase of the lots in question ever at any other time purchased or held any other property than these lots. Upon the facts the trial court held that the enterprise did not constitute a partnership, that the parties in interest owned the lots as tenants in common, and that there was no liability on the defendant Davies.

The material facts in the case are not in dispute, and the question is presented here whether the joint adventure of these parties amounted to a partnership, and whether the defendant is liable as a partner. These questions are answered by the facts, and not much, if any, argument is required to show that all of the essential elements of a partnership were present in this business undertaking. The property was purchased for speculation and profit, and the purchasers who associated themselves together as a unit were the joint owners of the same. No one of them owned any...