McCubbins v. Pollatschek

246 P. 979, 121 Kan. 262, 1926 Kan. LEXIS 73

• Court: Supreme Court of Kansas
• Decided: June 12, 1926
• Docket: No. 26,733
• Status: Published

Opinion

The opinion of the court was delivered by

Marshall, J.:

The plaintiff sued to recover $3,275 rent for a business building situated at Tonkawa, Okla., and recovered judgment for $1,600, from which the defendant Henry Leben appeals.

At the close of the evidence for the plaintiff, Henry Leben demurred thereto. That demurrer was overruled. Of the order overruling the demurrer Henry Leben complains.

The plaintiff alleged that he leased the property to J. M. Pollatschek and Henry Leben, as partners, for a monthly rental of $125; that the property was occupied from March 1, 1923, to December 1, 1923; and that the property had been leased for three years from March 1, 1923. The lease was in writing, and was from the plaintiff to J. M. Pollatschek, and was signed by the plaintiff and Pollatschek, but not by Henry Leben; his name was not mentioned in the lease nor was any partnership mentioned in it. The partnership was put in issue and likewise the authority of Pollatschek to act for Leben. Henry Leben contends that there was no evidence to show that he was a partner with Pollatschek nor that Pollatschek was the agent of Leben. To show some of the evidence of the plaintiff, we quote from the abstract of the appellant as follows:

“Mr. Porter introduced over the objections of the defendant, Henry Leben, and had admitted in evidence the telephone directory, being that part of page 46 of telephone directory of March, 1925, which shows no Henry Leben, but shows R. Leben, 735 S. Lawrence. Thereafter Mr. Porter, over the objection of the defendant, Henry Leben, introduced in evidence and was admitted that part of page 373 of the city directory of the city of Wichita for 1923, being as follows: H. Leben, b. 735 S. Lawrence. At page 492 the directory of the same volume: Joseph M. Pollatschek (Anna), manager State Army and Navy Store, r. 735 S. Lawrence avenue. P. 584 of the same directory is, the State Army and Navy Store, J. M. Pollatschek, manager. Army goods. 409 E. Douglas. Following that is the State Army and Navy Store, Roy Leben, manager, 502 E. Douglas. . . .

“Witness identified book dated March, 1925, as a telephone directory of the city of Wichita, published by the Southwestern Bell Telephone Company, and that the 1923 city directory, issued by R. L. Polk and Company for the year 1923 and distributed throughout Wichita. . . .

“Thereafter Mr. Porter, over the objections of the defendant Henry Leben, introduced in evidence page 398 of the city directory of 1923, and two items being as follows: Bessie Leben, widow of R. Leben, r. 735 S. Lawrence; Henry Leben, manager State Army and Navy store, b. 735 S. Lawrence ave. Page 590 of the same volume was introduced and read as follows: State Army and Navy Store, J. M. Pollatschek, mgr. Army goods. 409 E. Douglas, 502 E. Douglas.

“Thereafter, over the objections of the defendant Henry Leben, page 507 of the same volume of 1924 was admitted in evidence under the name of Joseph Pollatschek (Anna), manager State Army and Navy Store, b. 735 S. Lawrence ave.”

The business conducted at Tonkawa was known as the State Army and' Navy Store. There was evidence which tended to prove that some of the checks received by the plaintiff for rent were signed “The State Army and Navy Store,” and some were signed by “R. Leben.” At the time of the trial, which occurred April 19, 1925, R. Leben had been dead about five years. R. Leben and Henry Leben were different persons. The defendant’s evidence disclosed • that Henry Leben was the administrator of the estate of R. Leben. We quote again from the abstract of the appellant:

“W. M. Schaeffer, on behalf of the plaintiff, testified as follows: . . .

“Witness operates a truck line, and on a few occasions witness’ trucks hauled tents and tarpaulins from Wichita to Tonkawa for the State Army and Navy Store. Had a hard time to collect his money, for the reason each end wanted the other end to pay the freight. Witness moved considerable goods back from Tonkawa to Wichita about the 20th of October, 1923. The goods was taken to the State Army Store, where Mr. Leben appeared to be in charge, and the goods was mostly piled up in the storeroom in the back end of the building, and some of the goods was placed in the main building. Witness was paid for hauling the merchandise by Mr. Leben, but could not state whether it was Henry Leben.”

There was no other evidence to prove a partnership between J. M. Pollatschek and Henry Leben or that Pollatschek acted as the agent of Leben. That evidence was not sufficient to warrant the court in submitting to the jury the question of partnership or of agency. These involve the same proposition as that involved in the demurrer to the evidence.

The judgment is reversed, and the trial court is directed to enter judgment in favor of the defendant Henry Leben.

Johnston, C. J.-, dissenting.