dissenting: In view of the trial court’s finding that the claimant and Kemper held themselves out to be partners, I am unable to concur in the court’s opinion.
I think it elementary that parties who hold themselves out as partners are estopped to deny the existence of a partnership as against third persons who deal with them in reliance on their apparent relationship, and such is true even though there is in fact no true or legal partnership between the ostensible partners. (40 Am. Jur., Partnership, §§71, 72, pp. 178-180.) In 68 C. J. S., Partnership, § 32, p. 457, the rule is stated in this wise:
“Any act, representation, or conduct on the part of a person, reasonably calculated to induce the belief that he is a partner, constitutes a holding out, with respect to whether a partnership will be held to exist as to third persons. . . .”
This court has long recognized the rule. (Rizer & Co. v. James, 26 Kan. 221; Woodward, Faxon & Co. v. Clark, 30 Kan. 78, 2 Pac. 106; Rider v. Hammell, 63 Kan. 733, 66 Pac. 1026; John Deere Plow *474Co. v. Klaurens, 153 Kan. 151, 109 P. 2d 98.) In Clark v. Crouse, 130 Kan. 177, 285 Pac. 577, we said:
“. . . If a party permits his name to be used as a partner or by his statements and conduct indicates to the public that he is a partner, he will be estopped to deny responsibility. If he holds himself out as a partner, he may be held liable as far as third parties are concerned, although he may not in fact be a partner. This rule is based on the ground of estoppel, but is not to be applied when the third party has no knowledge of the holding out and who was not misled by the appearance produced. . . .” (p. 180.)
In my opinion, the evidence in this case clearly shows that claimant and Kemper held themselves out to be partners. The claimant, himself, so testified. Moreover, the testimony is undisputed that Fulton, the contractor, dealt with claimant and Kemper as partners, and paid them as such. Although the trial court stated that the contractor knew or should have known that claimant was not actually a partner, but an employee of Kemper, the record is entirely barren of any evidence to support such a conclusion.
The trial court asserted that the arrangement was a scheme by Kemper to avoid his responsibility as an employer and the evidence may justify such a conclusion, as the majority opinion points out. However, the issue is not Kemper’s responsibility, but Fulton’s. The uncontradicted testimony is that Kemper and claimant did hold themselves out to Fulton as partners, and that Fulton did contract with and pay them as partners.
I believe it must be said that Fulton’s reliance on the apparent partnership reacted to his detriment, for his testimony, undenied, is that he required a certificate of insurance coverage when dealing with a subcontractor who employed help, but that he contracted with claimant and Kemper on the basis of a partnership. I find no evidence in the record from which it can be inferred that Fulton’s reliance on the representations of claimant and Kemper was not in good faith.
For the foregoing reasons, I respectfully dissent.