Fenley v. Garvin , 110 Kan. 185 ( 1921 )

The opinion of the court was delivered by

West, J.;

The defendant appeals from a judgment rendered on the pleadings and the opening statement of his counsel.

In October, 1917, W. H. Fenley sued the defendant in replevin, alleging that he was entitled to the immediate possession of a Ford roadster, a pair of mules, a Bain wagon and work harness, and certain money then alleged to be on deposit. It was averred that the plaintiff’s son, Franklin Walton Fenley, having been called to serve in the world war, had left this property for safe-keeping in the hands of the defendant, who refused to turn it over to W. H. Fenley on a written order from the son, a copy of which was attached to the petition. The order was dated October 7, 1917, and directed the defendant to turn over $408.18 “left by me with you for safe keeping,” and also the other personal property. The answer was a general denial.

November 15, 1917, the plaintiff filed a supplemental petition, claiming damages for the use of the Ford roadster. April 2, 1918, after a continuance had been had, the court ordered the case off the docket on account of the son’s absence in the service. October 4, 191-9, the son having returned, he applied to be made a party, alleging in his motion that he had given the written order to the defendant for the immediate possession of the property named therein and had instructed and authorized his father to begin suit for possession thereof and “that he now ratifies all the acts done by the plaintiff in bringing this action.” The motion was granted, and on December 13,1919, the plaintiffs filed their amended petition, making the same allegations as theretofore made, and prayed judgment for possession of the personal property and for $474.20, the amount of the check cashed by the defendant with interest thereon from September -21, 1917, at six per cent. To this amended petition the defendant demurred and the demurrer was overruled. The plaintiffs were given leave to dismiss that part of the amended petition touching the check, and filed a second amended petition on February 9, 1920.

When the case came on for trial, after the plaintiffs had made their opening statement, the defendant’s counsel made a statement on which the court rendered judgment in favor of the plaintiffs, finding that the defendant wrongfully detained from the plaintiffs the property replevined, and ordering that they have judgment for the immediate possession thereof and for costs.

It is said that this statement was not taken down at the time, and that the court prepared and had filed the statement of the case to the jury on the part of the defendant. In this statement it is said that Fenley, jr., and the defendant had been friends before the war and discussed a proposition of becoming partners in a farming operation, and buying apples and other property; “that along'in the summer or early fall of 1917, ... it was agreed between the plaintiff, Fenley, jr., and the defendant, Garvin, that they would enter into such partnership, and they would rent a farm and begin farming operations March 1, 1918; and that the plaintiff, Fenley, jr., who was the owner of all the personal property in controversy, including the money in the bank, agreed to turn over to the defendant, Garvin, such personal property, and it was agreed that the defendant, Garvin, should look after some growing crops that the. plaintiff, Fenley, jr., then had growing upon some land in Doniphan county”; further, that Garvin was to use the money and all the personal property in such partnership business, which was to continue until Fenley, jr., returned from the army, when such personal property, should be turned back to him, the defendant sharing alike with him in the proceeds; that in the fall of 1917, Fenley, jr;, wrote the defendant from Camp Funston that he wanted him to turn over part of the personal property “other than the money to-his .father, Fenley, sr., in order to mollify and satisfy him, but that he wanted the defendant Garvin to be sure and keep the span of mules, harness and wagon”; that Garvin refused to honor the written order and “for the reason that he had such partnership contract with the plaintiff, Fenley, jr., insisted on his right to 'retain possession of all the property”; that the soldier returned in the summer of 1919, and the defendant, Garvin—

“Did not make any contention that the plaintiff, Fenley, jr., was not entitled to the possession of all of the property after his return from the army in the summer of 1919. But the defendant, Garvin, contended that in this action, which is a replevin action, that the gist of the action was the right to the possession of the property at the time of the commencement of the action, and that the plaintiff, Fenley, sr., had no right to the possession of such property, and that the plaintiff, Fenley, jr., was not a party to such action when it was originally brought, and had never given any replevin bond in such action, and that by reason of all of which the defendant, Garvin, was entitled to a verdict in the case.”

The defendant suggests in his brief that the trial court took the view that the partnership contract was void because not in writing, but we find nothing in the record to indicate what the views of the court were, further than the language of the journal entry of judgment.

Counsel for the plaintiffs states in his brief that “the attorney for Garvin in open court, said that Fenley was entitled to the possession of all the property replevined, and the court said if Franklin Walton Fenley was entitled to the possession of the property ever since his return from France, that he is entitled to it now, and so rendered his judgment.” It was stated by defendant’s counsel that when the written order was presented, Garvin, “on account of and for the reason that he had such partnership contract with the plaintiff, Fenley, jr., insisted on his rights to retain possession of all of the property.” But following this was the statement that Garvin made no contention “that the plaintiff Fenley, jr., was not entitled to the possesion of all of the property after his return from the army in the summer of 1919.”

There is no other claim made in the record or in the briefs that the defendant, at the time of the trial, claimed the right to retain possession on account of the partnership agreement. On the contrary, he seems to have fully conceded the right of Fenley, jr., to possession immediately after his return from the war, which.was some months before the case was tried. Counsel for the plaintiffs say: “Garvin’s possession of the property was lawful and continued lawful until the partnership business was settled,” also, that under the partnership agreement young Fenley would probably have been entitled to retain all the property “upon the settlement and adjustment of the partnership business, but that was a matter not in litigation in this suit, no claim being made by Franklin Walton Fenley except as set out in the petition which is printed in full in the abstract.”

If the partnership- arrangements and property interests are still unsettled and undisposed of as between the partners, it is strange that the defendant fully conceded the right of the other partner to possession of the property involved herein. Had he pleaded or claimed the right to retain possession until the settlement of the partnership affairs, then plainly under the decision in Syndicate Co. v. Martling, 108 Kan. 798, 196 Pac. 1058, neither of the plaintiffs would have been entitled to judgment.

The mere fact that the son had not given an additional replevin bond did not impair the defendant’s rights, for no question arose as to the sufficiency of the one given by the father. "Having conceded that the son was entitled to the possession of all the property, sued for upon his return from the army, and the son having by written order directed him to turn such property over to the father, it would seem that the trial court was justified in ordering judgment for the plaintiffs.

We cannot assume without something to base the assumption upon that any claim was made on the part of the defendant to retain possession until a settlement of the partnership affairs; and considering only the pleadings and the statement referred to, we find no error in the ruling of the trial court.

The judgment is therefore affirmed.

Johnston, C. J., and Dawson, J., dissent. (Filed January 7, 1922.)