Kast v. Kast

• Decision Date: 08 January 1951
• Docket Number: No. 2,No. 41618,41618,2
• Citation: 235 S.W.2d 375,361 Mo. 623
• Parties: KAST v. KAST
• Court: Missouri Supreme Court

Page 375

235 S.W.2d 375

361 Mo. 623

KAST v. KAST.

No. 41618.

Supreme Court of Missouri, Division No. 2.

Jan. 8, 1951.

Cornelius Roach, Mack Hency, Kansas City, Roach, Brenner & Wimmell, Kansas City, of counsel, for appellant.

Sam D. Parker, Robert D. Youle, Kansas City, Lathrop, Crane, Sawyer, Woodson & Righter, Kansas City, of counsel, for respondent.

BARRETT, Commissioner.

In November 1942, during the pendency of a divorce action between the appellant, Elizabeth S. Kast, and the respondent, Kenneth F. Kast, the parties entered into a property settlement agreement entitled 'Stipulation.' The 'stipulation' contains a preamble in which it is set forth that the parties had attempted to come to some amicable financial settlement but had been unable to do so and that their counsel had engaged in a conference with the trial judge who indicated what he thought would be a proper allowance for alimony and child support. In conclusion the preamble recites that 'he would not feel disposed, in view of all of the circumstances which had been explained to him to enlarge upon the alimony allowance or to require defendant to pay a cash amount for the future education of said minor son, Richard, but that he was inclined to make an order based upon the needs as of this date, and would reserve unto himself the right to reconsider the matter at any time the conditions of the parties were altered and justified such reconsideration, * * *.' The stipulation then recites that the parties had reconsidered their financial differences and had agreed, in nine numbered paragraphs, as follows: that neither party would object to an order allowing the plaintiff $125.00 per month alimony and $75.00 a month for the support of their minor son, from November 1, 1942; that the husband was to convey to the wife all his interest in their home, 5 West 62nd Street, in Kansas City; that she was to give him title to a Buick automobile and he was to give her title to a Nash automobile; that she was to have all household goods; that she was to join in the execution of a deed to certain Florida property; that he then paid her $950.00 in cash, $350.00 of which was to defray the son's dental expenses and from the balance she was to pay her attorneys' fees and the court costs, and that she was to give him certain books, records and personal belongings. Paragraph eight, which is the basis of this action, is as follows: 'Defendant agrees to transfer to plaintiff 75 shares of stock of Sears Roebuck & Company, if and when said stock is received by defendant from the Profit Sharing Fund of said Sears Roebuck & Company.'

The value of the stock in November 1942 was not agreed upon in the stipulation but in her petition Mrs. Kast alleges and the admitted fact was that its value was then $60.50 per share or a total value of $4,537.50. If in November 1942 Mo. Kast had been entitled to receive shares of stock from the fund, he would have received 146 shares of common stock of no par value. After the execution of the stipulation in 1942, and before Mr. Kast received any shares of stock from the Profit Sharing Fund, in October 1945, Sears Roebuck & Company split its stock by calling in the old shares and issuing new shares at a ratio of four new shares for one old. Mr. Kast continued with Sears Roebuck until January 31, 1949 when he retired at age sixty and received from the Profit Sharing Fund the number of new shares of no par value common stock equal to the sum to his credit in the fund. These shares then had a value of $37.875 per share or $2840.63 for seventy-five shares and a value of $11,362.50 for 300 shares and Mr. Kast tendered seventy-five of the shares in fulfillment of his obligation under the stipulation. Mrs. Kast refused to accept the tendered seventy-five shares and instituted this action for a declaratory judgment that under paragraph eight she was entitled to 300 shares of the new stock together with the accrued dividends. The trial court found for the respondent husband and gave his twenty-four requested findings of fact and conclusions of law. These findings included among other things, a finding of the stock split and the respective values above set forth. They included a finding that paragraph eight of the stipulation was complete upon its face and unambiguous and that parol evidence was not admissible in explanation or in interpretation of the language. In addition, the findings expressed the view that the parol evidence, if admitted, would not prove that the stipulation was ambiguous.

The appellant contends now, as she did in the trial court, that a subsequent event, or extraneous circumstance, the action of a third party, changed the stipulated situation and created a latent ambiguity authorizing the admission of extrinsic evidence in explanation and interpretation of the intent and meaning of the parties with respect to the subject matter of their agreement. The respondent contends that the contract is complete and unambiguous; that a contract 'to transfer * * * 75 shares of stock * * * if and when said stock is received by defendant' from a specified source may not be read to mean that the transferee is entitled to 300 shares of stock. It is insisted by the respondent that the basis for the latent ambiguity rule is that on attempted application to the subject matter of the contract (here the shares of stock) the language is shown to be equally applicable to two things--usually two things in existence when the contract was executed. Williams v. Ashurst Oil, Land & Development Co., 144 Cal. 619, 78 P. 28. There is no disagreement between the parties as to the general rules relating to latent ambiguities and the admission of parol evidence, 32 C.J.S., Evidence, Sec. 961, pages 915-920; 20 Am.Jur., Sec. 1157, p. 1010; State ex rel. W. L. Morrison Inv. Co. v. Trimble, 301 Mo. 146, 256 S.W. 171, the disagreement is whether the rule applies to the facts of this case. When appropriate the rule applies to contracts involving the sale and transfer of shares of corporate stock as it does to other contracts. 18 C.J.S., Corporations, Sec. 403, page 947.

It is indeed arguable from one point of view that the language of paragraph eight is unambiguous and that seventy-five shares of stock may not be read to mean three hundred shares of stock. The facts and circumstances of Zohrlaut v. Mengelberg, 144 Wis. 564, 124 N.W. 247, 128 N.W. 975; Id., 148 Wis. 592, 134 N.W. 1135; Id., 158 Wis. 392, 148 N.W. 314, 149 N.W. 280 (finally affirmed by an equally divided court) are not identical with the facts of this case--there had been no stock split in that case--but the language there used was held to be unambiguous. The respondent's argument overlooks the fact that 'shares of stock' or 'seventy-five shares of stock' may not always be and remain the same thing or have the same meaning at different times. From the...