Rankin v. Trickett
| Decision Date | 09 March 1907 |
| Docket Number | 14,888 |
| Citation | 89 P. 698,75 Kan. 306 |
| Parties | J. O. RANKIN v. MRS. L. B. TRICKETT et al |
| Court | Kansas Supreme Court |
Decided January, 1907.
Error from Miami district court; WINFIELD H. SHELDON, judge.
STATEMENT.
THIS suit was brought in the district court of Miami county by Mrs. L. B. Trickett against J. O. Rankin for the partition of personal property, consisting principally of an iron safe and books constituting an abstract outfit, in which Mrs. Trickett claimed she owned an undivided one-half interest and Rankin the other half.
Rankin in his answer claimed that the property was or had been partnership property, owned by himself and Joseph P Trickett, as partners in the business of abstracting; that the partnership had been dissolved by expiration of the term of their contract but that no accounting thereof had been had; that the partnership was indebted to him; and that he had a lien on the property for such indebtedness and to secure a condition of the partnership agreement that Joseph P. Trickett should repurchase Rankin's interest in the property, if desired by Rankin, on the expiration of the partnership contract. Joseph P. Trickett was made a party defendant, on the application of Rankin.
Joseph P. Trickett and plaintiff both replied and alleged a dissolution of the partnership and an accounting and settlement of the partnership business; denied that the property ever was partnership property; and alleged that Mrs Trickett bought the undivided one-half interest therein, at the request of Rankin, from Bryan & Son, who held a chattel mortgage on the entire property, which security was given to them by Joseph P. Trickett and wife prior to the sale of the one-half interest therein by Joseph P. Trickett to Rankin on the formation of the partnership.
Upon a trial without a jury, after the evidence was introduced and the arguments made, the court, without any application therefor, and over the objection of Rankin, dismissed the suit as between Rankin and Joseph P. Trickett, rendered judgment as prayed for by Mrs. Trickett, and ordered a partition of the property.
Judgment reversed and case remanded.
SYLLABUS BY THE COURT
1. PRACTICE, DISTRICT COURT--Issue Properly Raised by Pleadings and Evidence but Not Determined--Erroneous Judgment. Upon the trial of a civil action, where one of two defendants has pleaded new matter which if sustained by the evidence entitles him to relief concerning the subject-matter of the action, and such defendant has produced evidence tending to establish such issue, it is error for the trial court to refuse to determine such issue and to render judgment without regard thereto.
2. TITLE AND OWNERSHIP--Personal Property--Partners or Tenants in Common--Evidence. Where it is material on a trial to determine whether personal property owned equally by two partners and used in the partnership business is owned jointly as partnership property or individually in undivided moieties, a letter which is referred to in a written agreement to form a partnership as containing the conditions and specifications on which the business is to be conducted is material evidence.
3. TITLE AND OWNERSHIP--Proof of Ownership as Partners. The letter referred to in the preceding paragraph, together with the writings signed by the partners, evidences the partnership title to the personal property used in the business and not the individual ownership thereof in undivided moieties.
4. PRIORITY OF LIENS--Unrecorded Chattel Mortgage--Subsequent Lien Acquired without Notice. Where T. sells to R. a one-half interest in personal property, and at the same time forms a copartnership with R. and such property as used...
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