Livingston v. Knaus

Decision Date11 June 1921
Docket Number23,218
PartiesA. R. LIVINGSTON, Appellant, v. N. C. LEWIS and W. J. KNAUS, Appellees
CourtKansas Supreme Court

Decided January, 1921.

Appeal from Gove district court; ISAAC T. PURCELL, judge.

Reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Allegations of Partnership--Unverified Answer--Existence of Partnership Stands Admitted. Under section 110 of the civil code, which provides that allegations of the existence of a partnership shall be taken as true unless the denial thereof is verified by affidavit when a petition alleges the existence of a partnership and an accounting is demanded between the alleged partners, an unverified answer of the defendant does not raise an issue as to the existence of the partnership, and its existence stands admitted; but a plaintiff can only take advantage of this rule of the code by a timely objection, specifically pointing out to the court the want of verification to defendant's answer; and if plaintiff replies to the unverified answer and goes to trial on the issue of fact, and adduces his evidence thereon, and makes no showing that he was taken by surprise by the ruling of the court and that he was unprepared to produce evidence on the issue which should have been held to be conceded by the unverified answer, he cannot base reversible error on the ground that the trial court tried out and determined the question of the existence of the alleged partnership on the evidence presented for its determination.

2. SAME--Objections to Pleadings Should Be Clear and Precise. An objection to the sufficiency of a pleading should be timely made, and it should be so clear and precise that the trial court can readily discern its significance; and if the objection lacks in precision and the court is misled thereby, no prejudicial error can be based thereon, following Emery v. Bennett, 97 Kan. 490, 492, 155 P. 1075.

3. SAME--Joint Newspaper Adventure -- Evidence -- Findings--Parties Entitled to Accounting. The evidence and findings of the trial court examined, and held to establish as a matter of law that the plaintiff and defendants were engaged in a joint adventure to take over a newspaper and printing plant and that an accounting and settlement should be had between them.

J. L. Travers, and Edgar C. Bennett, both of Osborne, for the appellant.

E. F. Beckner, of Gove, for the appellees.

OPINION

DAWSON, J.:

This was an action for an accounting between plaintiff and defendants in an alleged partnership of a newspaper and printing plant at Quinter.

The plaintiff's petition alleged that on June 30, 1910, the plaintiff, Livingston, and the defendants, Lewis and Knaus, entered into a partnership agreement by the terms of which they were jointly to purchase a newspaper, the Gove County Advocate, and operate the newspaper plant as partners; that on that date they purchased the newspaper and plant by a bill of sale from the owner, William Field. The consideration was $ 3,841.97 and a copy of the bill of sale was attached to plaintiff's petition. Plaintiff alleged that he contributed $ 2,380.40 to the enterprise and that defendant Knaus contributed about $ 1,000; that the defendant Lewis was to manage and conduct the newspaper plant for himself and his partners; that there had never been an accounting between the partners; and that Lewis had uniformly applied to his own use the moneys received in operating the property.

Defendant Knaus filed a separate answer setting up various matters, and he, too, prayed for an accounting.

Defendant Lewis answered with a general denial; he also pleaded sundry matters, and alleged that he had been the holder of a second mortgage on the newspaper property given by William Field and that he had foreclosed that mortgage and had bought the property at the sale under the second mortgage foreclosure.

Neither of the answers was verified. But the plaintiff did not demur to the unverified answer of defendant Lewis. He filed a reply thereto, reiterating charges of the conversion of the partnership property by Lewis to cheat and defraud the plaintiff, and repeated the prayer of his petition.

When the case came on for trial, the court ruled that "the issues pertaining to the matter of partnership should first be determined."

Plaintiff objected "for the reason that there was no issue touching the partnership, such issue being admitted on the face of the pleadings."

The trial court then proceeded to hear the evidence. At its conclusion an informal finding was made:

"By the Court: This is rather a peculiar case. These three men got some money invested in a printing office, and from the record, I think none of them wanted it. They combined. I would hardly call it a partnership. They associated to keep the plant alive until it could be sold. I don't feel that there was a partnership that could bind the others for a dollar. They associated themselves, it is true, in trying to protect the debt, yet I don't figure that there was a partnership."

Judgment was accordingly entered--

"That no partnership exists or ever has existed and for the defendants and against the plaintiff. Wherefore it is by the court considered, ordered and adjudged that the defendants recover their costs."

The plaintiff appeals, insisting on the application and enforcement of the code provision:

"In all actions, allegations . . . of the existence of a . . . partnership . . . shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney." (Civ. Code, § 110.)

The particular point would have been perfectly good if the plaintiff had stood upon it. (Reed v. Arnold, 10 Kan. 102; Walker v. Fleming, 37 Kan. 171, 177, 14 P 470; Hayes v. Insurance Co., 98 Kan. 584, 158 P. 1107; Hill v. Republic County, 99 Kan. 49, 160 P. 987; 31 Cyc. 529.) But plaintiff did not stand on this point. He filed his reply, and presented his evidence in support of his allegations touching the existence of the partnership. His objection at the trial "that there was no issue touching the partnership, such issue being admitted on the face of the pleadings," was not very illuminating to a trial judge who perhaps had no time to guess for himself just...

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