Wells v. Hazlett , 125 Kan. 635 ( 1928 )

The opinion of the court was delivered by

Dawson, J.:

A petition for a rehearing in this cause, which has had our careful attention, suggests nothing overlooked in our original opinion that would justify a disturbance of the judgment of the trial court, but it does point out a remark in our original opinion which should be corrected in the interest of accuracy. We said:

“Nothing in this record suggests that this action sought to subject defendants to a liability as partners or because they were tenants in common.” (p. 276.)

There was an allegation in plaintiff’s petition that defendants were partners. That allegation, if proved, would have served to bind all the defendants for any act or statement of any of them concerning matters pertaining to plaintiff’s employment, according to the general law of partnerships; otherwise, of course, the several defendants could only be bound so far as they individually participated in the contract of employment and in the breach of its obligations. But the mere fact that a plaintiff alleges more than he can prove, or fails in part of his proof, does not necessarily ruin his case. The trial court disposed of plaintiff’s allegation of partnership in its sixteenth instruction, which reads:

“You are instructed that under the evidence in this case, the defendants did not own the property described in the amended petition as partners, but that they owned it as tenants in common, each defendant owning an undivided one-fourth interest therein, and that therefore, without being expressly or impliedly authorized, as herein elsewhere instructed, one of the defendants did not have the right to bind another defendant in reference to any transaction concerning the sale of this property, and that before any one of the defendants could be required to sell his interest in the property in question, he must give either express or implied authority to sell it, as herein instructed.”

This court cannot concede that plaintiff framed his cause of action on one theory and recovered on another. The cause was the same throughout — against four men for services performed under a contract of employment.

The rehearing is denied.