Kan.) CAPITAL CITY VITRIFIED BRICK & PAV. CO. v. CONCORDIA L. CO. 39 JOHNSTON, C. J. The Capital City Vitrified Brick & Paving Company brought this action against the Concordia Lumber Company to recover the sum of $362.50, the contract price for a shipment of 40,000 building and 1,500 pressed brick ordered by the defendant company and shipped according to directions to Hollis, Kan., where they were intended to be used. The defendant refused to accept and use the brick upon the ground that those furnished as building brick were unfit for use and not the kind of brick that it had purchased, and the 1,500 pressed brick were so mixed with the other brick that it was impracticable to separate and use them. A counterclaim of $20 was presented in the answer by defendant to pay the loss resulting from plaintiff's breach of contract. The trial resulted in a judgment for defendant, and upon this appeal the plaintiff insists that error was committed in admitting testitimony, in refusing to submit certain interrogatories that were requested, and in the giving and refusing of instructions. To review these rulings a consideration of the evidence and the proceedings of the trial court is essential. It appears that only a part of the oral evidence has been transcribed, and the defendant insists that he is unable to test plaintiff's abstract by the transcript or make a counter abstract that will correctly present the errors assigned. It is conceded that the transcript is not complete, and the defendant asserts that vital and considerable parts of the evidence and proceedings have been omitted. It does not appear that there was any obstacle in the way of the plaintiff obtaining a complete transcript. Whether the rulings in admitting testimony, in the submission of special questions, or in instructing the jury, were material, can only be determined from an examination of the evidence. The record does not contain a stip ulation that all matters material for the disposition of the errors assigned are included in the record, nor is there any agreement of counsel that the evidence is complete on any particular issue. In Typewriter Co. v. Anderson, 85 Kan. 867, 118 Pac. 879, it was said: "The Code prescribes how a record of evidence and proceedings may be preserved for use on appeal, and it is the duty of an appellant who asks a consideration of the evidence or proceedings to make them a part of the record before filing his abstract. Baker v. Readicker, 84 Kan. 489, 115 Pac. 112. Without a certified transcript or offered and received the court cannot consider its an agreement of parties as to what evidence was sufficiency or other questions arising on it." Page 868 of 85 Kan., page 879 of 118 Pac. In Readicker v. Denning, 86 Kan. 79, 119 Pac. 533, it was held that a record of the evidence is made by filing the stenographer's transcript, and the burden of doing this devolves upon the appellant, and that to obtain a review of questions depending upon the evidence the appellant must "procure and cause to be filed an official transcript of all the evidence introduced, except as the necessity therefor may be avoided by agreement of counsel, or by a statement in the transcript that it contains all the evidence on a particular matter." Page 80 of 86 Kan., page 533 of 119 Pac. The same rule was applied in Davidson v. Timmons, 88 Kan. 553, 557, 129 Pac. 133, 135, where it was said that: "In the absence of a transcript, this court canings in the trial court, nor determine whether not settle conflicting claims as to the proceedrulings referred to in the findings of that court on such proceedings may not have been controlled by evidence, admissions or waivers not preserved in the record." In the recent case of McGuire v. Davis, 95 Kan. 486, 491, 148 Pac. 755, 756, the question was again considered, and it was said: her abstract any evidence regarded by her as "The appellant was privileged to omit from not pertinent to the questions presented. But it was incumbent upon her to have all the oral testimony preserved in a transcript, in order to lee might go for whatever additional evidence he provide an authentic source to which the appelwished to bring before the court in a counter abstract." It may be said that, if it were agreed that the testimony in the record included all that is pertinent to any question presented in the appeal, the decision must have been that the finding of the jury determined that the brick furnished were not of the particular kind that were purchased. If those furnished were not the kind contracted for, defendant was not obliged to accept them even if they were of greater value than those purchased. It appears that none of the other objections are material, but the state of the record is such that we are not warranted in entering upon their consideration. Nothing being open to review here, the appeal is dismissed. All the Justices concurring. STATE v. BERGER. (No. 20374.) (Supreme Court of Kansas. Feb. 12, 1916.) TION. (Syllabus by the Court.) MISDESCRIP | sheriff who raided the premises and seized the beer and liquor paraphernalia found in the nuisance therein maintained. [1] 1. The statute forbids the quashing of an information for any defect or imperfection 1. INTOXICATING LIQUORS 213 · MAINTENANCE OF LIQUOR NUISANCE-INFORMATION which does not tend to prejudice the subGROUNDS FOR QUASHING stantial rights of the defendant on the merits. Cr. Code, § 110, subdiv. 7 (Gen. St. 1909, § 6686). It is not conceivable that the misdescription of the materials out of which the building was made could prejudice the rights of the defendant. The motion to quash was properly overruled. An information charged the maintenance of a nuisance in a frame building on a location sufficiently described. The amended information recited that the nuisance was maintained in a concrete building, the location being exactly the same. Held, that the misdescription of the materials out of which the building was constructed did not prejudice the defendant's rights and the quashing of the amended information under such circumstances was forbidden by subdivision 7 of section 110 of the Criminal Code (Gen. St. 1909, § 6686). [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 255–257; Dec. Dig. 213.] 2. CRIMINAL LAW 280-PLEA IN ABATEMENT-DEMURRER. A demurrer to a plea in abatement is properly sustained when the facts alleged in the plea contradict the record. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 645-651; Dec. Dig. 3. INTOXICATING LIQUORS 230 MAINTENANCE OF LIQUOR NUISANCE-EVIDENCE. Where the defense was that the place where the alleged nuisance was being maintained was only a lodgeroom where the members occasionally had a keg of beer on tap, the evidence of the officer serving the warrant, which showed the situation of the premises, the crowd, the liquors, and paraphernalia of the place, and the presence of the defendant and his acts, was competent, although the information may have been filed the day before the officer served the warrant. [2] 2. The plea in abatement alleged that the place described in the amended information was a separate and distinct place from that named in the original information, and not the place which the county attorney had in mind when he filed the original information. This plea contradicted the record, and the demurrer was therefore properly sustained. Lester v. State, 91 Wis. 249, 64 N. W. 850; 12 Cyc. 356. [3, 4] 3. The sheriff testified that he receiv280.1 ed the warrant on April 9, 1915, and the same evening or the next evening he went to the place described in the information, but it was a concrete, and not a frame, building, and found it inclosed with a high-board fence. He found and seized some liquors, glasses, etc., and arrested the defendant, whom he found behind the counter serving beer to persons present. The sheriff was critically cross-examined on the point as to whether the location of the place was in accordance with the location described in his warrant. But this evidence is said to be incompetent to prove that a nuisance was being conducted at the place at the time of the filing of the information, which was on the preceding [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 290; Dec. Dig. 230.] 4. INTOXICATING LIQUORS 230 MAINTENANCE OF LIQUOR NUISANCE-EVIDENCE. The case of Topeka v. Chesney, 66 Kan. 480, 71 Pac. 843, distinguished. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 290; Dec. Dig. 230.] Appeal from District Court, Cherokee County. Jules Berger was convicted of maintaining a common nuisance, and appeals. Affirmed. A. L. Majors and C. B. Skidmore, both of Columbus, for appellant. S. M. Brewster, Atty. Gen., and F. W. Boss, of Columbus, for the State. DAWSON, J. The appellant was convicted of maintaining a common nuisance, and appeals. The original information and the warrant issued thereon recited that the nuisance maintained by the defendant was located in a "one-story frame building, situated," etc. Before trial, an amended information was filed in which the word "concrete" was substituted for the word "frame." The defendant complains because the court overruled his motion to quash, sustained a demurrer to his plea in abatement, and overruled his motion to strike out the testimony of the day. And the case of Topeka v. Chesney, 66 Kan. 480, 71 Pac. 843, is relied on to support this contention. In that case the evidence related to the condition of the place five days after the date of the offense and three days after the filing of the complaint. But it is well established by our decisions that it is competent to show the officer's seizure of the liquors and liquor paraphernalia at the place charged in the information. State v. O'Connor, 3 Kan. App. 594, 43 Pac. 859; State v. Stockman, 9 Kan. App. 422, 58 Pac. 1034; State v. Schoenthaler, 63 Kan. 148, 65 Pac. 235; State v. Giroux, 75 Kan. 696, 90 Pac. 249. And such evidence is competent even if the officer proceeded without a warrant. State v. Schmidt, 71 Kan. 862, 80 Pac. 918. The state justly contends that the appellant has not brought up all the evidence, and that the chief defense was that the building was the meeting place of a lodge and the beer drinking a mere social affair. Even the scant record brought here indicates that that question was involved, and that fact was sought to be developed by defendant's crossexamination of the sheriff. Moreover, it needs but an occasional keg of beer and beer | gas-fitting business in the city of Ardmore, drinking to transform a lodgeroom into a Okl. By agreement of the partners the plainnuisance. On an issue as to whether the place was an innocent lodgeroom or a nuisance, the sheriff's evidence was competent, and the court's instructions (5 and 7) emphasized the necessity that before the defendant could be convicted, the jury must find from the evidence that a nuisance was being maintained at the place described in the information at the time it was filed. The general finding of the jury must control. It is not contended here that the evidence did not support the verdict. tiff went to Ardmore to take charge of the business at a salary of $85 per month. His salary and all other expenses were to be paid out of the proceeds of the business, and the profits, if any, were to be shared equally. The business was a losing venture. The receipts for six months were $3,000.10; the disbursements, $3,683.62; and certain other expenditures were borne by the plaintiff personally. The plaintiff closed out the business in April, 1908, and shipped the remaining goods on hand to the defendants, who had an The judgment is affirmed. All the Justices independent partnership in other business concurring. elsewhere. BROOKS v. CAMPBELL et al. (No. 19876.) (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.) This action was brought on September 19, 1913, and the later amended petition set out the foregoing facts, and pleaded the state of the accounts between plaintiff and defendants, showing a balance due him, and allegAc-ing the existence of "some unsettled acIMPLIED CON- counts." His petition continues: 1. PARTNERSHIP 315 - DISSOLUTION When a partnership business is closed out, a cause of action for an accounting and settle ment arises between the partners, under an implied contract mutually and equally to share the profits and bear the burdens of the partnership. [Ed. Note.-For other cases, see Partnership, Cent. Dig. § 731; Dec. Dig. 315.] 2. PARTNERSHIP 321 ACTION FOR AcCOUNTING AND SETTLEMENT. A partnership business was closed out in April, 1908. An action for an accounting and settlement and for moneys due to one partner from the other partners was not begun until September, 1913. Held, that such action was barred by the statute of limitations. Code Civ. Proc. § 17, subd. 2 (Gen. St. 1909, § 5610). [Ed. Note.-For other cases, see Partnership, OF STATUTE - INTERRUPTION BY PAYMENT A partnership of three members established a business at Ardmore, Okl. The business was a failure, and was closed out by the plaintiff, as manager, with the consent of the other partners. Two years and three months later plaintiff collected a claim against a railway company for the loss of goods shipped by him to the other partners upon closing out the partnership business. Plaintiff voluntarily placed the sum collected to the credit of the defunct partnership. Held, that such voluntary payment did not interrupt the running of the statute of limitations in plaintiff's own favor. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 623–630; Dec. Dig. 155.] "That certain goods shipped to the defendant at the time said business was closed were lost, and said firm had a claim against the Missouri Pacific Railway Company for the loss of said goods, which claim the defendant Walter Campbell, of said [independent] firm of Campbell & Beeler, instructed this plaintiff to collect. That he proceeded to collect the claim, but did not succeed therein until the 1st day of August, 1910, when said company paid $100 in settlement of such claim, which was placed to the credit of the firm of Brooks, Beeler & Campbell on the 1st day of August, 1910. That since the 1st day of August, 1910, each of said defendants have been absent from the state of Kansas at times for more than a total of 60 days." The plaintiff prayed for a commission to examine the books and accounts of the firm, for a determination of the partners' several interests, and for a judgment for the amount claimed to be due him from his copartners. The district court sustained a demurrer to the amended petition, and the case is here for review. [1, 2] 1. Was this action barred by the statute of limitations? There is an implied obligation between general partners that on the termination of the partnership they will account to each other and settle and pay any balances due among themselves. To bring about such accounting and settlement a cause of action will lie. Norman v. Conn, 20 Kan. 159; Turner v. Otis, 30 Kan. 1, 1 Pac. 19; Appeal from District Court, Montgomery Clarke v. Mills, 36 Kan. 393, 13 Pac. 569; County. Action by O. P. Brooks against Walter K. Campbell and another. From a judgment for defendants, plaintiff appeals. Affirmed. Brooks & Buckles, of Sedan, for appellant. Thomas E. Wagstaff and S. P. Miles, both of Independence, for appellees. DAWSON, J. In October, 1907, the plaintiff and defendants formed a partnership for the purpose of conducting a plumbing and 30 Cyc. 681, 713; 1 M. A. L. 762. In the petition it was alleged that the partnership business was closed in April, 1908. This action was not begun until September 19, 1913, some 5 years and 5 months thereafter. Unless the partnership business was unsettled, and we will consider that later, the plaintiff's cause of action for an accounting arose in April, 1908, and was barred in April, 1911. If, as alleged, his partners owed the plaintiff a balance of money, it too was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes barred in April, 1911. Civ. Code, § 17, subd. | Miller et al., 75 Va. 442; Riddle v. White2 (Gen. St. 1909, § 5610). If there were un-hill, 135 U. S. 621, 10 Sup. Ct. 924, 34 L. Ed. settled accounts, the statute would not begin | 282. They relate to partnerships being to run until they were disposed of. Bush- wound up in due course, realizing assets, nell on Limitations and Adverse Possession, satisfying debts, etc. Obviously no statute $$ 57, 66, 67, 207, 208; 2 Wood on Limita- of limitations would run in such cases. tions, § 211, and note. There is, however, apparently no end of authority for holding that the cause of action for accounting and settlement between partners arises on the dissolution of the appellant when "with the consent of the defendants [his partners] he closed out the business when it was found to be unprofitable, and plaintiff shipped to the defendants the stock of goods remaining on hand when said business was discontinued." Some of these authorities which we have examined in detail are: Adams v. Taylor, 14 Ark. 62; Wilhelm v. Caylor, Ex'r of Rinel, 32 Md. 151; Codman v. Rogers, 10 Pick. (Mass.) 112; Atwater v. Fowler, 1 Edw. Ch. (N. Y.) 417; Murray v. Coster, 20 Johns. (N. Y.) 576, 11 Am. Dec. 333; Appleby v. Brown, 24 N. Y. 143; Coleman v. Second Avenue R. R. Co., 38 N. Y. 201; Dwinelle v. Edey, 102 N. Y. 423, 7 N. E. 422; Gray v. Green, 125 N. Y. 203, 206, 26 N. E. 253; Coalter v. Coalter, 1 Rob. (Va.) 79; Angell on Limitations, § 69; Wood, Limitation of Actions, 116. Here, so far as shown by the petition, the only item unsettled-that is, unpaid-was the claim agaist the railway company for a shipment of goods lost in transit. The plain-partnership, or in such a case as pleaded by tiff says that "Walter Campbell, of the firm of Campbell & Beeler, instructed the plaintiff to collect" that item. It should go without saying that the firm of Campbell & Beeler, an independent firm, had no interest in the affairs of the partnership under consideration, which was the firm of Brooks, Beeler & Campbell. But, laying aside that point as a technicality, let it be considered that Campbell, a partner of the Ardmore firm of Brooks, Beeler & Campbell, instructed the plaintiff, Brooks, to collect the claim against the Missouri Pacific Railway. He did not authorize, nor can it be fairly said from the pleadings that he directed, that the amount which might be collected from the railway company should be "placed to the credit" of the defunct firm of Brooks, Beeler & Campbell. It seems hardly fair to permit this voluntary payment by Brooks in 1910 to the defunct firm to interrupt the running of the statute of limitations in his own favor. Hancock v. Cook, 18 Pick. (35 Mass.) 30. It would be stretching language unduly to characterize the railway company as a "customer" of the defunct firm. [3] From the foregoing we must hold that the cause of action for the accounting and settlement on the implied obligation of partners arose when the partnership business was closed out in 1908, and an action thereon filed in 1913 was barred by the statute of limitations (Civ. Code, § 17, subd. 2, and the voluntary payment to the defunct partnership in 1910 by the plaintiff did not interrupt in his own favor the running of the statute (52 L. R. A. 707, note 3). The demurrer was properly sustained, and the judgment is affirmed. All the Justices concurring. We have examined the authorities cited by appellant. The first was the case of Green v. Williams, 21 Kan. 65, which was largely one of agency, and it was properly held that the statute did not run, because there was no demand and refusal to pay and because the agent lived in another state. The other case cited by appellant (Benoist et al. v. Markey, Tutor, et al., 25 La. Ann. 59), is much more FIECHTER v. FIECHTER. (No. 19397.)* to the point. There the firm of Benoist, Shaw, Murphy & Newman had formed a (Supreme Court of Kansas. Feb. 12, 1916.) partnership in 1859. Its business was ruin(Syllabus by the Court.) ed by the Civil War, and there was nothing APPEAL AND ERROR 1046 done towards a settlement of the partnership REVERSAL-ABSENCE OF Judge. business until 1866, when suit was begun It is the duty of the judge of the district and a receiver appointed upon the appli- where, over the objections of one of the parties, court to preside during the trial of cases; and cation of the parties. Litigation of several he calls the clerk to preside at the argument of years' duration ensued. This was a plain a case and leaves the courtroom, a very slight case where the statute should not be held to showing of prejudice is sufficient to authorize a begin to run until a settlement of the partner-reversal of the judgment with direction to grant ship affairs had been effected, and until the [Ed. Note.-For other cases, see Appeal and partners could have an opportunity to com- Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. mence proceedings under the judgment set-1046.] a new trial. - GROUND FOR tling the respective rights of the liquidat- Appeal from District Court, Decatur ing partners. County. Action by Jennie D. Fiechter against Ernest E. Fiechter. From judgment for defendant, plaintiff appeals. Reversed and new Other cases holding that the statute does not under all circumstances begin to run on the dissolution of the partnership are: Holloway v. Turner, 61 Md. 217; Jordan v. trial ordered. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes H. O. Caster, of Oberlin, for appellant. J. he would have difficulty in confining the arP. Noble, of Oberlin, for appellee. PORTER, J. This is an ordinary suit to foreclose a mortgage on real estate. The plaintiff is the wife of the defendant, but when the suit was filed they had separated. The husband answered, admitting the execution of the note and mortgage, and alleging that they were given without any consideration. As a second defense the answer alleged that the parties were husband and wife, and that the note and mortgage were given for and in contemplation of securing a divorce without any defense thereto, and are therefore void as against public policy. The cause was tried to a jury, and a verdict returned in favor of the defendant. A motion for a new trial was overruled and plaintiff appeals. Since the trial the courthouse burned, and the stenographer's notes were lost. Plaintiff has been unable to procure a transcript of the evidence. There are no errors assigned in plaintiff's abstract; but in the brief complaint is made that the trial court committed an abuse of discretion which prevented plaintiff having a fair trial. The abstract contains this statement: "Just prior to the argument to the jury the court called upon the clerk of the district court to preside and keep time at the arguments, saying that he had himself some other matters to attend to. Whereupon the appellant objected to the court's leaving the room and objected to any one else presiding except the judge himself, saying that considerable irrelevant matter had leaked in during the trial of the case and that he feared that the argument would not be confined to the testimony. The court jokingly replied that he did not think that if he remained he would be able to keep attorneys for either side within the testimony, and left the courtroom and remained absent during the arguments." guments of counsel to the real issues in the case. The plaintiff objected to the action of the judge in turning the business of the court over to the clerk, and it ought not to require very much of a showing of prejudice to authorize a new trial. There are several things in connection with this case that satisfy us that plaintiff was denied a fair trial. In a criminal case, State v. Beuerman, 59 Kan. 586, 591, 53 Pac. 874, 875, it was said in the opinion: "The absence of the judge during the progress of a trial cannot be sanctioned. The argument it is essential that it should be conducted in the of a cause is an important part of the trial, and presence and hearing of the judge, who must ultimately approve the proceedings and render judgment. The hearing and conduct of the argument is almost, if not quite, as important as the hearing and reception of testimony; and the judge should be present to see that counsel in their arguments do no go beyond the bounds of legitimate discussion and to determine any objections that may be raised. In fact, there can be no court without a judge, and he cannot even temporarily relinquish control of the court or the conduct of the trial. It is necessary that he should hear all that transpires in the trial in ceedings upon the motion for a new trial." order that he may intelligently review the pro The judgment is reversed, and a new trial ordered. All the Justices concurring. Clerical employés in the office of the city clerk are not employés of the city in conducting a light and water plant, as contemplated by section 6 of the Workmen's Compensation Act (chapter 218 of the Laws of 1911). 2. MASTER AND SERVANT 281-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE-SUFFICIENCY OF EVIDENCE. The evidence of the plaintiff showed that the character of the work of removing the pipe which fell on the deceased and the dangers incident thereto were apparent to him, and in atdid he was sufficiently at fault to bar a recovtempting to perform such work in the way he ery. Held, the demurrer to such evidence was rightfully sustained. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 987-996; Dec. Dig. 281.] It is further stated in the abstract that during the argument the jury was told by counsel for defendant that the plaintiff was of bad moral character, and that this statement was made notwithstanding that depositions offered by the defendant for the sole purpose of attacking the personal and moral character of the plaintiff had been rejected by the court as incompetent and irrelevant. Some of the facts contained in plaintiff's abstract as to what occurred are denied by the defendant in a counter abstract, in which it is asserted that the judge remained in the courtroom during the argument to the jury of counsel for plaintiff. We think the record discloses prejudicial error. A party has a right to complain of the action of a judge in calling the clerk to preside at a trial and leaving the courtroom. This ought to be the rule in any lawsuit; and it certainly applies to a case that has been warmly contested, and where prejudice is likely to result from statements outside the record made during arguments. Apparently enough had WEST, J. The widow of Alberta Udey already transpired to satisfy the judge that brought this action for the benefit of herself Appeal from District Court, Cowley County. Action by Dollie Udey against the City of Winfield, to recover damages for death of plaintiff's husband. From judgment for defendant, plaintiff appeals. Affirmed. Jackson & Noble, of Winfield, for appellant. James A. McDermott, of Winfield, for appellee. |