Liberty Glass Co. v. Bath

• Decision Date: 02 July 1960
• Docket Number: No. 41853,41853
• Parties: LIBERTY GLASS COMPANY, Appellee, v. W. J. BATH and Louise G. Bath, d/b/a Dr. Pepper Bottling Co., Defendants, W. J. Bath, Appellant.
• Court: Kansas Supreme Court

Page 786

353 P.2d 786

187 Kan. 54

LIBERTY GLASS COMPANY, Appellee, v. W. J. BATH and Louise G. Bath, d/b/a Dr. Pepper Bottling Co., Defendants, W. J. Bath, Appellant.

No. 41853.

Supreme Court of Kansas.

July 2, 1960.

Syllabus by the Court

In an action for recovery of the purchase price of certain merchandise sold defendants, the record is examined and it is held, (1) there was sufficient competent evidence to support the trial court's finding that defendants were engaged in a business partnership, and (2) the court did not err in overruling appellant's motion to make definite and certain and to strike, in overruling appellant's demurrer to plaintiff's petition and in rendering judgment in favor of the plaintiff against both defendant partners.

Charles S. Arthur, Manhattan, argued the cause, and Charles D. Green, Manhattan, was with him on the briefs for the appellant.

John F. Stites, Manhattan, argued the cause, and Richard D. Rogers, Manhattan, was with him on the briefs for the appellee.

WERTZ, Justice.

This was an action for recovery of the purchase price of certain merchandise sold defendants. Judgment was entered for plaintiff against both defendants. Defendant W. J. Bath appeals.

The Liberty Glass Company, a corporation, plaintiff (appellee), alleged in its amended petition that Louise G. Bath and W. J. Bath, defendants, were husband and wife at all times stated therein and were engaged at such times as partners in business at Manhattan under the name of the Dr. Pepper Bottling Co., or, in the alternative, that Louise G. Bath was the agent of W. J. Bath (appellant) in the mentioned business; that January 26, 1956 Louise purchased an order of Dr. Pepper bottles and an order of Squirt bottles, and on April 2, 1956 purchased an order of Dr. Pepper bottles, which orders were delivered to defendants at Manhattan, and that by reason thereof they were indebted to plaintiff in the sum of $5,962.01, for which it asked judgment.

Defendant W. J. Bath's answer denied generally plaintiff's allegations and expressly denied that a partnership had existed or did exist between him and Louise, or that she was his agent. Plaintiff replied by way of a general denial.

On the issues thus joined, a jury was waived and trial was had to the court. At the conclusion of the evidence the trial court found that the Dr. Pepper Bottling Company in Manhattan was a copartnership composed of W. J. and Louise G. Bath, and entered judgment against the partners for the amount due plaintiff. From an order of the trial court overruling his motion for a new trial, defendant W. J. Bath appeals and contends, among other things, that the evidence was insufficient to sustain the finding that a partnership existed. This contention requires a brief review of the voluminous evidence contained in the record.

Defendants W. J. and Louise G. Bath were husband and wife and, during their marriage, owned the Dr. Pepper bottling plant at Manhattan, purchased in 1943, and the one at Independence. Mr. Bath testified that he had purchased bottles from plaintiff for over forty years and did business with them at both plants; that he and Louise both owned the Manhattan plant. Marital trouble arose between defendants, as a result of which Mr. Bath left Manhattan in the spring of 1955. He continued to operate the Independence plant, while his wife, Louise, managed the Manhattan plant. Mr. Bath, as in the past, received revenue from the Manhattan plant and participated in its operation. During the year of 1956, papers and documents were sent to him from the Manhattan plant for his signature. Louise testified that she ordered the Dr. Pepper and Squirt bottles from plaintiff January 26 and April 2, 1956, and that the undisputed amount of $5,962.01 was due plaintiff. The Manhattan plant purchased a franchise for bottling and selling Squirt and the contract was entered into by the defendants and signed by Mr. Bath March 24, 1956. The acceptance of the contract was signed by the president of The Squirt Company April 9, 1956.

Titles to some of the Manhattan plant's trucks were in Mr. Bath's name alone. He signed some truck registration slips in 1956 and these trucks were in his name until transferred by the court at the divorce hearing in October, 1956. Papers and documents were sent to him in 1956 for his signature, and he signed them and sent them back to Manhattan. Mr. Bath testified that he and Louise had 'the whole thing together'; that until the time of signing the Squirt franchise, the Dr. Pepper franchise was entirely in his name. Out of the operation of the Manhattan plant, Louise sent Mr. Bath $4,000 in 1955. Business at the plant was poor in 1956, and at the time of the signing of the Squirt contract Mr. Bath sent Louise $1,600 for the purpose of purchasing Squirt bottles.

On September 12, 1956, the defendants, in the then pending divorce action, entered into a written contract, wherein they agreed to settle all their property rights so that each would be free from any claim of the other and each would be entitled to his or...