Bonesteel v. Beth

• Decision Date: 09 March 1929
• Docket Number: 28,583
• Citation: 127 Kan. 843,275 P. 163
• Parties: JOE BONESTEEL, Appellant, v. S. R. WHITE and C. W. BETH, Partners, as THE FORT SCOTT OIL COMPANY, Appellees
• Court: Kansas Supreme Court

275 P. 163

127 Kan. 843

JOE BONESTEEL, Appellant, v. S. R. WHITE and C. W. BETH, Partners, as THE FORT SCOTT OIL COMPANY, Appellees

No. 28,583

Supreme Court of Kansas

March 9, 1929

Decided January, 1929.

Appeal from Bourbon district court; CHARLES F. TRINKLE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RELEASE--Effect of Indefinite and Uncertain Stipulations--Election of Remedies. Where the plaintiff by reply seeks to reform an absolute release of defendant from liability under the cause of action set out in the petition by limiting and restricting it to a definite time in the future and stipulating as to rights and obligations of the parties in the future, although such stipulation may be indefinite and uncertain as to some features to be determined in the future, the action necessarily becomes so far one upon contract as to be considered such in the election of remedies.

2. ELECTION OF REMEDIES--Inconsistencies as to Contract. A plaintiff whose right to recover depends upon the reformation of a contract cannot elect to affirm it in one pleading and later disaffirm it in another pleading in the same case.

Ernest E. Blincoe, of Fort Scott, and W. W. McCanles, of Kansas City, Mo., for the appellant.

C. E. Hulett and A. M. Keene, both of Fort Scott, for the appellees.

OPINION

HUTCHISON, J.:

This is an appeal from the ruling of the trial court in striking out the amended reply as inconsistent with the original reply. The petition sets forth a cause of action under a common law liability for negligence of defendants. The answer sets up compromise, settlement and full release in writing, attaching the release as an exhibit. In the original reply the plaintiff alleged a mutual mistake of fact as to the terms and contents of settlement; that the settlement did not state the true agreement entered into between the parties, and set forth the agreement as the plaintiff had understood it; and asked to have the contract reformed or the release set aside and held for naught.

The omitted parts, as alleged by plaintiff, were limitations as to the extent of the release in the following language in two places, viz.: "Up until and including the 1st day of June, 1925"; and also the following sentence: "And thereafter such sum or sums as the parties may mutually agree are due and may be due said party of the first part, providing he has not fully recovered from said injuries." The original reply also alleged--

"That he was suffering excruciating pain and agony, was under the influence of drugs and did not know and appreciate the contents of said release, and did not fully understand that a statement was being made and did not understand its terms."

The amended reply contained practically the same averments as the original, but added averments relative to the release having been obtained by false and fraudulent representations, and asked to have it set aside and held for naught.

With the original reply the plaintiff's petition, from a standpoint of pleading, was substantially the same as if in his petition, after referring fully to his injury, his continued disability therefrom, and the defendants' negligence and liability, had set out the agreement of settlement as it was and as it should be reformed, leaving open after June 1, 1925, only the questions of his continued disability and the amount he should receive per month therefor. This would most certainly be in effect an action upon the contract as reformed. The plaintiff recognizes the contract as such, says he executed it, and asks that it be reformed by the addition of the parts omitted by mutual mistake. Under such a contract it would not be necessary to establish negligence; the defendants, by having signed such instrument as plaintiff...