Seay v. Ellison

Williams, J. The referee found, as findings of fact: (a) “Both the plaintiff and defendants plead that a settlement was made in the latter part of April, or early May, 1900, and that it was then orally agreed that the defendants should have until the 1st of August, 1900, in which to pay the amount found tó be due. The plaintiff avers it was $1’569.67 found to *713 be due, and the defendants aver that it was' $827 found to be due. No evidence was presented to the referee upon this issue. The plaintiff testified that no settlement had ever been made. The latter testimony was in support of the averment made in his third amended petition that no such settlement had been made, while in his original, first, and second amended petitions all averred to the contrary. In each of the three, the original, the first, and the second amended petitions, the plaintiff fixed the time of the settlement alleged to have been made as on the 1st of August, 1900. Your referee, therefore, both from the inconsistent pleadings and the testimony of the plaintiff, finds that no settlement was ever made and no agreed statement of account ever rendered between the parties.” (b) “This action was commenced by the filing of the original petition in the office of the clerk of the district cburt on the 22nd day of June, 1905. It purported to be an action for money due upon an account stated, and in each of the first three petitions, the original, the first, and the second amended petitions, the plaintiff adhered to this position. In the third amended petition his action becomes one for an accounting.” (e) “On page 2 of his third amended petition, the plaintiff states: ‘That some time during the year 1900 the defendants furnished to plaintiff statements and items for the purpose of using such memoranda as a basis on which to base a settlement of the partnership affairs, but that ever since the furnishing of such data the defendants have refused to settle up the partnership affairs.’ Your referee finds that this was the same statement referred to in paragraphs 6, 7, and 8 hereof, and was so furnished on March 12, 1900.” (d) “Both parties agree in their pleadings that there was an oral agreement between them that the amount due the plaintiff from the business might be paid on the 1st of August, 1900, but at no time was there ever an agreement of any kind as to what the amount was.” Conclusions of law: “(2) Plaintiff cannot maintain his action for the reason that more than five years elapsed between the time the cause of action arose and the date when he commenced it.” From the evidence in the record, all the partnership property was disposed of, and the proceeds paid over to the plaintiff. *714 The amount claimed to be due the plaintiff from the defendants was not the fruits of the partnership business, in the nature of a trust fund, but an alleged liability that arose by virtue of the contract in favor of the plaintiff from the defendants for their one-half of the capital or advancement for such purpose by the plaintiff, to be paid out of the proceeds of the business; the defendants becoming liable for one-half of the losses, in the event there were any. There appears to have been a loss. Had the defendants originally furnished their one-half of the capital in the partnership, there would have been no liability growing out of such partnership from the defendants to tht plaintiff. But the plaintiff having advanced for defendants then-portion of the capital under the partnership agreement, and all the assets having been disposed of prior to June, 1900, the referee finding that the partnership was dissolved and all the partnership assets disposed of prior to that time, and there being testimony reasonably tending to support such finding, which was approved by the trial court, the same will not be disturbed by this court. Mellon v. Fulton, 22 Okla. 636, 98 Pac. 911, 19 L. R. A. (N. S.) 960; Town of Sapulpa v. Sapulpa Oil & Gas Co., 22 Okla. 347, 97 Pac. 1007. The other question is one of error alleged to have been committed by the referee in refusing to reopen the case after it had been closed, and to permit the plaintiff to introduce additional testimony. This was a question calling for the exercise of discretion, not only on the part of the referee, but also by the trial court, and their action in the matter will not be disturbed by this court, unless it affirmatively appears from the record that there has been an abuse thereof. It not affirmatively so appearing, this court will not disturb their action. Miexell v. Kirkpatrick, 33 Kan. 282, 6 Pac. 241; Oberlander v. Confrey, 38 Kan. 462, 17 Pac. 88; West v. Cameron, 39 Kan. 736, 18 Pac. 894. The judgment of the lower court is affirmed. All the Justices concur, except Kane, C. J., not participating.