Nicholson v. Kilbury

• Decision Date: 06 January 1915
• Docket Number: 11785.
• Citation: 83 Wash. 196,145 P. 189
• Court: Washington Supreme Court
• Parties: NICHOLSON v. KILBURY.

145 P. 189

83 Wash. 196

NICHOLSON v. KILBURY.

No. 11785.

Supreme Court of Washington

January 6, 1915

Department 1. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by Lucy Nicholson against T. T. Kilbury, as administrator of the estate of Emma Ju. Kilbury, deceased. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Voorhees & Canfield and C. E. H. Maloy, all of Spokane, for appellant.

Peacock & Ludden and H. G. Kinzel, all of Spokane, for despondent.

ELLIS J.

This is an action against an administrator for an accounting and settlement of the affairs of a partnership which it is claimed existed and continued between the plaintiff and the decedent from the fall of 1892 to the time of the decedent's death in October, 1911.

The evidence is very voluminous, and much of it of little materiality. We cannot within the reasonable limits of an opinion set out more than the salient facts developed. It is not claimed that the contract of partnership was in writing and, since one of the alleged partners is dead, the plaintiff could not testify to any express contract between her and the decedent. The evidence was therefor directed to an effort to establish the partnership by circumstantial evidence and the admissions of the decedent to various persons at different times throughout the existence of the alleged partnership. The following facts are either admitted or so thoroughly established by the evidence as to be beyond controversy.

The plaintiff was a niece of and lived with the decedent as a member of her family from the time she was a girl of 14. In the fall of 1892, when the plaintiff was about 17 years of age, she, with the decedent's family, moved from Sprague Wash., to Spokane. She then possessed, by inheritance from her mother, furniture worth somewhere in the neighborhood of $1,000, and sufficient to furnish eight or ten rooms in a lodging house. This furniture was used in furnishing a lodging house on Sprague avenue, in the city of Spokane. The plaintiff was a girl of unusual energy and executive ability, and gave her whole time and attention to the development of the rooming house business conducted in the name of her aunt. The Sprague avenue house was conducted until March, 1893, when the plaintiff's furniture was moved to another house No. 225 Howard street, known as the Little Metropolitan Hotel, which was conducted from March, 1893, until some time in 1898. In the spring of 1893 the plaintiff, through final settlement with her guardian, received $570 in money, which was also used in equipping the Little Metropolitan Hotel. The business prospered, and in 1895 or 1896 another lodging house on Howard street, known as the Star was purchased. In 1897 another lodging house known as the Lauman House, on Riverside avenue, was purchased, furnished, and conducted as the other houses. It appears that from March 1893, until some time in 1898, from one to three hotels were being successfully operated with considerable profit. In 1898 the three houses above mentioned were disposed of and a house procured at 220 Howard street, known as the Big Metropolitan Hotel. This was conducted until 1904, when it was sold and a larger establishment, known as the Riverside Hotel, was opened. This house was operated until 1909, when it was traded for two pieces of property in Whitman county, a farm and seven lots in the town of Rosalia. During nearly all of the time that the various lodging houses and hotels were operated, the plaintiff gave to them her constant attention, and for a part of the time conducted one or more of the houses with very little assistance from her aunt. It appears that for about 14 or 15 years of this period the plaintiff devoted all of her time and energy to the business, receiving no pay save her living. During the progress of the hotel business a farm in the Big Bend Country near Edwall was purchased, also two lots in Cook & King's addition to Spokane. The Edwall property was sold in 1902 and two lots in Moore's addition to Spokane purchased. This property is known in the record as the Mansfield property. During this period, also, the decedent purchased an interest of certain of the other heirs in the estate of Amanda J. Fry, known as the Joseph Fry estate. The evidence as to this estate is not clear, but the plaintiff admitted that two notes aggregating $3,400 in amount given for a sale of a part of the Fry land, known as the Markel notes, were the personal property of the decedent and not partnership property; the land which they represented having come to decedent as one of the Fry heirs. In 1907 three lots in Peter Sapro's addition to Spokane were purchased. This property is spoken of in the record as the Fairview or home property. In 1899 the decedent married the defendant, T. T. Kilbury, who is now the administrator of her estate. In 1906 the plaintiff also married. For a short time after her marriage plaintiff lived in the Fairview of home property, but afterwards returned to the hotel and devoted her time to its operation for a while; but it appears that during the last year and a half of its operation it was mainly conducted by the decedent. The decedent had no property whatever at the time of embarking in the lodging house business. All of the furniture and money for starting the business were furnished by the plaintiff. All of the money for the purchase of furniture of the various hotels and for the purchase of the several properties, save such sums as the defendant claims that he himself furnished, was produced from the profits of operation and the proceeds of the sale of the various hotels. It clearly appears from the evidence that during the progress of the business the plaintiff and the decedent from time to time drew from the profits of the business such moneys as were necessary for their living expenses, but had no accounting of any kind touching the partnership business.

The uncontradicted evidence shows that the decedent many times from 1893 up to her last illness in 1911 stated to several witnesses that the plaintiff was a partner in the business and was entitled to half of everything that the decedent held in her name. These statements were made to one A. L. Ritz, a brother-in-law of the decedent, many times during the years 1908 and 1909 and shortly before her death in 1911. He testified that the decedent at these times told him that all the money and property they owned when they opened the Little Metropolitan Hotel was Lucy's; that the decedent then had no money; that she (the decedent) had made whatever she had from that hotel as the start; and that Lucy had a half interest in the business. One Margaret Frary also testified that about the year 1898 she was living and boarding at one of the hotels in question, was well acquainted with the decedent, and that the decedent several times said to her that the plaintiff was a partner in the business and just as much entitled to her share of the profits as she (the decedent) was. Two other disinterested witnesses, one Miller and his wife, testified that they had lived and boarded at the Little Metropolitan Hotel in the year 1896 for a short time, and again in the year 1897, and at times during the years 1898, 1899, and 1900 at other hotels conducted by the plaintiff and the deceased. Both testified that many times during those years the decedent had said to them that the plaintiff was a partner in the business and entitled to one-half of all that she (the decedent) had at any time. These witnesses also testified that when the decedent in 1899 married the defendant, or shortly after the marriage, the decedent said to Mr. Miller that the plaintiff was threatening to withdraw from the business and demanding a settlement; that if she persisted in that course it would ruin her (the decedent), and asked Miller to intercede with the plaintiff and pursuade her to let the business continue as before; that he did this with the result that the matter was not pressed and the decedent afterwards thanked him for his good offices in the matter. The decedent's two sons both testified that, at the time of the opening of the rooming house on Sprague avenue in 1892, the plaintiff's furniture was practically all of the furniture used in furnishing the house; that on the opening of the Little Metropolitan Hotel in the spring of 1893 ...