Rider v. Hammell

• Citation: 66 P. 1026,63 Kan. 733
• Decision Date: 07 December 1901
• Docket Number: 12,421
• Parties: S. W. RIDER v. C. T. HAMMELL et al
• Court: United States State Supreme Court of Kansas

66 P. 1026

63 Kan. 733

S. W. RIDER v. C. T. HAMMELL et al

No. 12,421

Supreme Court of Kansas

December 7, 1901

Decided July, 1901.

Error from Bourbon district court; WALTER L. SIMONS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

PARTNERSHIP -- Contract Construed -- Estoppel. Whether a written agreement between two or more persons, which is plain and unambiguous, creates a partnership inter se, is a question of law. The agreement in this case creates no such relation. One may estop himself from denying his liability as a partner, where such relationship does not exist in fact, by holding himself out as such, or by negligently permitting one with whom he is engaged in business to do so.

McCleverty & Padgett, for plaintiff in error.

W. R Biddle, for defendants in error.

GREENE, J. CUNNINGHAM, POLLOCK, JJ., concurring.

OPINION

GREENE, J.:

C. T. Hammell and D. F. McCarty, partners as Hammell & McCarty, commenced this action in the district court of Bourbon county, against E. P. McCarty and S.W. Rider, as partners, to recover the sum of $ 145.48, alleged to be due said plaintiffs on account of certain coal furnished to the defendant E. P. McCarty, at Bronson, Kan., and by him used in operating a machine in boring for oil, coal, gas, etc.

It was alleged in the petition that S.W. Rider was a partner of McCarty in the work that was being carried on at Bronson, and therefore liable to plaintiffs for this debt. Upon the trial the following agreement was entered into:

"It is hereby conceded that Hammell & McCarty furnished the coal claimed to E. P. McCarty without the knowledge of defendant S.W. Rider, and also upon the individual credit of E. P. McCarty, with the understanding and belief that this machinery all belonged to E. P. McCarty, and that said understanding was not from any conduct or statement of Mr. Rider, but before the beginning of this suit plaintiffs discovered this contract between McCarty and Rider and bring this suit claiming that Mr. Rider was a partner of Mr. McCarty in this well-drill."

It is further conceded by defendants that the amount of judgment in the court below against E. P. McCarty is correct so far as McCarty is concerned. Upon the trial below judgment was rendered for plaintiffs against Rider and McCarty, as partners, from which judgment Rider prosecuted error.

The following is the agreement between McCarty and Rider, by which it is claimed that they were partners:

"This contract is made and entered into this 16th day of November, 1896, by and between S.W. Rider, of Kansas City, Mo., party of the first part and E. P. McCarty, of La Cygne, Kan., party of the second part.

"Said first party agrees to furnish to said second party the No. 5 Star drilling-machine, of Akron, Ohio, manufacture, now being operated near Paola, Kan., together with the tools, ropes and other appliances now in use with said machine for drilling oil, gas or water wells, and said first party is to receive for the use of said machine twenty-five cents per foot for each foot drilled with it during the life of this contract.

"Said second party hereby agrees to keep said machine in good repair and to turn over same to first party at the termination of this contract in as good condition as it now is, ordinary wear and tear excepted.

"Second party will furnish all the labor and supplies, including oils, coal and water necessary for moving and operating said machine and will hold said first party harmless from all liability for any accident that may occur by reason of the use of said machine. In case of loss of tools, second party is to use all possible means to recover them, and if unsuccessful, second party agrees to pay one-half the cost new tools, the other half to be borne by first party. If full payment is not received for any well because of lost tools, first party is to share in the reduction and be paid one-fourth of the amount received for drilling the well; and if no pay is received for any well because of lost tools, first party is to receive nothing for the use of the machine on that well. First party agrees to furnish new cables when needed.

"The twenty-five cents per foot is to be paid out of the proceeds of each well and is payable upon completion of each well.

"It is hereby mutually agreed that first and second party shall share equally in any right of development of the wells drilled, in case they shall produce sufficient oil to warrant their operation as oil-wells.

"Said second party shall not have outstanding at any one time contracts to drill more than two wells without the written consent of said first party.

"This contract may be terminated by either party by giving thirty days' notice in writing of a wish to terminate it, and at the end of said thirty days it shall terminate, unless said second party has outstanding uncompleted contracts for drilling which cannot be completed within said thirty days, in which event such uncompleted contracts are to be completed by second party without delay, and upon their completion this contract shall terminate. Signed in duplicate.

"Dated this 16th day of November, 1896.

S. W. RIDER.

E. P. MCCARTY."

The contract for boring the well at Bronson was made between McCarty and the Bronson Gas and Improvement Company, the material part of which is that McCarty agreed to bore an eight-inch hole 1000 feet for $ 1 per foot; for the next 250 feet he was to receive $ 1.25 per foot, and thereafter $ 1.50 per foot. There was some understanding about casings, etc., but nothing material to a full understanding of this case.

The agreement between Rider and E. P. McCarty, which was introduced in evidence, is plain and unambiguous, and whether it creates a partnership between these parties as to themselves is a question of law. (Boston etc. Smelting Co. v. Smith, 13 R.I. 27, 43 Am. Rep. 1; Nathaniel Webster v. John Clark, Son & Co. , 34 Fla. 637, 16 So. 601, 27 L. R. A. 126, 43 Am. St. Rep. 217; Morgan v Farrel, 58 Conn. 413, 20 A. 614, 18 Am. St. Rep. 282.) "A partnership is the contract relation subsisting between persons who have combined their property, labor and skill in an enterprise or business, as principals, for the purpose of joint profit." (Spaulding v. Stubbings, 86 Wis. 255, 56 N.W. 469, 39...