598 P.2d 188 (Kan. 1979), 49662, Celco, Inc. of America v. Davis Van Lines, Inc.

Docket Nº:49662.
Citation:598 P.2d 188, 226 Kan. 366
Party Name:CELCO, INC. OF AMERICA, a Delaware Corporation, Appellee, v. DAVIS VAN LINES, INC., a Kansas Corporation, and A. V. Davis and Pauline Davis, husband and wife, Appellants.
Attorney:[6] Kim Daniel Richey, of Prairie Village, argued the cause and was on the brief for the appellants. Mark L. Yates, of Stinson, Wisdom & Lasswell, of Wichita, argued the cause and was on the brief for the appellee.
Case Date:July 20, 1979
Court:Supreme Court of Kansas
 
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Page 188

598 P.2d 188 (Kan. 1979)

226 Kan. 366

CELCO, INC. OF AMERICA, a Delaware Corporation, Appellee,

v.

DAVIS VAN LINES, INC., a Kansas Corporation, and A. V. Davis

and Pauline Davis, husband and wife, Appellants.

No. 49662.

Supreme Court of Kansas

July 20, 1979

Syllabus by the Court

1. If a case is tried upon one theory it is too late for a plaintiff to change positions and advance another theory on appeal which might have been but was not presented to the trial court.

2. In the absence of an objection first made in the trial court, omissions in findings will not be fatal to a judgment since the trial court is presumed to have found all of the facts in issue necessary to support the judgment.

3. A waiver of homestead and personal exemptions by executory contract is contrary to public policy.

Page 189

Kim Daniel Richey, Prairie Village, argued the cause and was on brief for appellants.

Mark L. Yates, of Stinson, Wisdom & Lasswell, Wichita, argued the cause and was on brief for appellee.

HERD, Justice:

This is an action by Celco, Inc. of America to collect rent due under lease agreements, the return of rental equipment, damages for fraud and attorney's fees from Davis Van Lines, Inc., A. V. Davis and Pauline Davis. The trial court found for Celco and Davis appeals.

The facts were stipulated by the parties as follows: Celco, Inc. of America is engaged in the business of leasing truck-tractors and trailers. Davis Van Lines, Inc. is a common carrier and hauls household furniture. A. V. Davis and Pauline Davis are the owners of all the common stock in Davis Van Lines, Inc., A. V. Davis is the president of the company and Pauline Davis is the secretary-treasurer.

Between February 24, 1972, and June 15, 1973, Davis Van Lines leased a number of pieces of equipment from Celco, for which Davis Van Lines was to pay a monthly rental. A. V. Davis and Pauline Davis guaranteed in writing that Davis Van Lines, Inc. would promptly pay its monthly rental and discharge all of [226 Kan. 367] its present and future obligations to Celco. They promised to pay all losses, costs, attorney's fees or expenses which Celco might suffer because of default on the lease agreement by Davis Van Lines, Inc., A. V. Davis or Pauline Davis. The Davises waived all exemptions and homestead laws and notices required by law.

Davis Van Lines, Inc. borrowed money from the Country Club Bank of Kansas City, the Southgate Bank and Trust Co., of Prairie Village, Kansas, and from the Small Business Administration. In each instance they gave the lender a security interest in some of the leased equipment claiming ownership in the equipment without the knowledge of Celco, Inc.

On two occasions, pieces of equipment leased by Davis Van Lines, Inc. from Celco were accidentally destroyed. The Davises filed claims with the insurance carrier for the equipment for the loss of the vehicles. They collected and used the...

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