McCormick v. McCormick

• Decision Date: 07 July 1934
• Docket Number: 31566.
• Citation: 33 P.2d 942,140 Kan. 38
• Parties: McCORMICK v. McCORMICK et al.
• Court: Kansas Supreme Court

33 P.2d 942

140 Kan. 38

McCORMICK v. McCORMICK et al.

No. 31566.

Supreme Court of Kansas

July 7, 1934

Syllabus by the Court.

Where money is loaned under contract not fixing time for repayment and some action is necessary before lender can commence action for money, lender must take action within reasonable time and not longer than statutory time for bringing action on claim (Rev. St. 1923, 60--306, cl. 2).

Where wife of one partner loaned money to partnership under oral contract not fixing time for repayment, claim of wife who did not demand repayment was barred in 1928, where partnership received last amount of loan in 1917 (Rev. St. 1923, 60--306 cl. 2).

Where money is loaned and the contract under which it is loaned does not provide for any time when it shall be repaid and some action is necessary to be done by the lender before he can commence an action for the money, he must take the action within a reasonable time, never any longer than the statutory time, for bringing action on such a claim.

Appeal from District Court, Rooks County; William B. Ham, Judge.

Action by C. J. McCormick against E. L. McCormick and Eunice McCormick. From a judgment for Eunice McCormick, E. L McCormick appeals.

Judgment reversed, and cause remanded, with directions.

O Osborn, of Stockton, and C. L. Thompson, of Hoxie, for appellant.

SMITH Justice.

This was an action for an accounting of a partnership. Judgment was for one defendant for money claimed to have been loaned to the partnership. One member of the partnership appeals.

The facts are simple. For some years C. J. McCormick and E. L McCormick, his brother, were partners operating farm lands located in Books and Sheridan counties. In April, 1915, C. J. McCormick and Eunice McCormick were married. After the marriage, E. L. McCormick continued to live on the farm with C. J. McCormick and his wife, Eunice.

In 1928 C. J. McCormick filed an action for partition and accounting. Eunice McCormick was made a party defendant. Her answer alleged in part as follows: "That on or about the -- day of April, 1915, this defendant, Eunice McCormick, was married to the plaintiff, C. J. McCormick, and at that time said defendant, Eunice McCormick, was possessed of the sum of $450.00 in money. That from time to time thereafter during the years 1915, 1916 and 1917, and perhaps at a later period, this defendant advanced and furnished to the said firm said funds amounting in the aggregate to the sum of $450.00, and the same was used in the business of said firm. There was an oral agreement that said firm would repay said sum to this answering defendant, said oral agreement having been made between the firm individually. No part of said funds have been repaid, and said firm is indebted to this answering defendant in the said sum of $450.00 with interest."

E. L. McCormick filed a reply to that answer in which he alleged that Eunice McCormick had waived her claim by laches. Trial was had before the court, and a judgment was rendered in favor of Eunice McCormick for $450. This appeal is from that judgment.

At the trial counsel for Eunice McCormick stated that she loaned this money to the partners during 1915, 1916, and 1917, and that she bought furniture, linoleum, and things used in the home for the benefit of E. L. McCormick, C. J. McCormick, and Eunice McCormick. She stated that 1917 would be the date from which interest would be claimed because that was when...