Branstetter v. Cox, 46322

• Decision Date: 06 May 1972
• Docket Number: No. 46322,46322
• Citation: 496 P.2d 1345,209 Kan. 332
• Parties: Dick J. BRANSTETTER, Appellant, v. Norma COX, Appellee, and Christine Schulte and Mae Wadley, Defendants.
• Court: Kansas Supreme Court

Page 1345

496 P.2d 1345

209 Kan. 332

Dick J. BRANSTETTER, Appellant, v. Norma COX, Appellee, and Christine Schulte and Mae Wadley, Defendants.

No. 46322.

Supreme Court of Kansas.

May 6, 1972.

Syllabus by the Court

In an action for specific performance of a written contract to convey real estate, the record is examined and it is held: Parol evidence as to a conditional delivery of the contract was admissible and there was substantial competent evidence to support the findings and judgment in favor of defendant-appellee.

Robert W. Kaplan, of Kaplan, McMillan & Anderson, Wichita, argued the cause and was on the brief for appellant.

Owen J. Redmond, Jr., of Redmond & Redmond, Wichita, argued the cause and was on the brief for appellee.

FROMME, Justice.

This action was brought for specific performance of a written real estate purchase contract. After a trial to the court, judgment was entered in favor of all defendants. The plaintiff-seller. Dick J. Branstetter, appeals from the judgment in favor of the defendant-buyer, Norma Cox.

No appeals were taken from the judgments in favor of the other defendants, so they are not interested in this appeal.

The real estate purchased contract was on a printed form. The blanks were filled by writing in longhand. The contract which was in evidence has the blank for the name of the seller filled in with 'Dick Branstetter, a single person'. The blank for the name of the buyer was filled with 'Norma Cox'. Nothing concerning her marital status was shown. The description of the residence property, the consideration for the conveyance, the amount of the earnest money payment and all other blanks were filled in longhand. The signatures of Norma Cox and Dick J. Branstetter appear at the bottom of the contract.

The defendant Norma Cox claimed in her answer there was no meeting of minds on the contract. She alleged that her signature was affixed with an understanding the contract would not take effect or be binding unless and until it was approved by her husband, Lee Cox; and that he never approved the same.

The defendant's position was sustained by the trial court on the basis of the evidence introduced. The plaintiff appeals and urges two points.

Certain preliminary facts should be noted in order for us to consider these points.

Christine Schulte, a saleswoman for Mae Wadley, a real estate broker, filled in the blanks of the real estate purchase contract. Norma Cox signed the contract in the presence of Christine Schulte. The seller, Dick J. Branstetter, was not present when this was done. Thereafter, Christine Schulte took the contract to Branstetter for his signature. Norma Cox was not present when Branstetter signed. The earnest money payment of $100 was in the form of a check signed by Norma Cox. The check was delivered to Christine Schulte at the time Norma Cox signed the contract. The check was drawn on the joint account of Lee or Norma Cox.

Although the testimony of the parties is conflicting, Norma Cox testified generally as follows: She had previously purchased a house through the efforts of Christine Schulte. The title to that house was taken in joint tenancy with her husband. Thereafter Christine Schulte called her about purchasing another house at 2731 Maple Street in Wichita. A friend, Mrs. Lowry, was with her at the time. They met Christine Schulte at the Maple Street address and inspected the house. Mrs. Cox advised Mrs. Schulte they would not be interested in the house unless her husband looked at it. Her husband might approve the purchase if the lot was big enough to put a second house on it. Mrs. Schulte asked Mrs. Cox to call her husband and have him come to the address. Mrs. Cox advised Mrs. Schulte she could not do this because her husband was busy at that time. Mrs. Schulte then asked if she might go to the husband's office and get his approval on the contract. While the women were sitting in the car Mrs. Schulte filled in the bottom part of the contract leaving the names of the seller and buyer in blank. Mrs. Cox asked Mrs. Schulte about these blanks and Mrs. Schulte stated she would fill them in when she got back to the office. Mrs. Cox testified the earnest money payment requested on the $6,500 contract was $500 but that she refused to make a check for more than $100 and so advised Mrs. Schulte. She did not think her husband would consider buying this house. Later that evening Christine Schulte called her by telephone. Her husband was there at that time. She advised Mrs. Schulte her husband was not interested and would not sign the contract.

The husband, Lee Cox, testified that the contract on the Maple Street property was never presented to him for his signature. He was not interested in the property. He was present with his wife in their home when Mrs. Schulte called on the telephone. This was the evening of the day the house was shown to his wife. He heard his wife advise Mrs. Schulte he would not sign the contract. The following morning Mrs. Schulte called him at his office about buying the Maple Street property. He advised her he was not interested.

Mrs. Lowry, the friend of Mrs. Cox, testified that she accompanied Mrs. Cox when she looked over the property on Maple Street. Mrs. Lowry overheard the conversation between Mrs. Cox and Mrs. Schulte. Mrs. Cox told Mrs. Schulte she would have to get her husband's approval on the house. He would have to look at the house and sign the contract. Mrs. Lowry further testified that Mrs. Schulte then asked if she could go get Mr. Cox and have him look at it. Thereafter the paper, which Mrs. Lowry understood to be a contract, was signed while all three of them were sitting in the car.

Plaintiff's first point of contention on appeal is that the oral testimony of Mr. and Mrs. Cox and of Mrs. Lowry was an attempt to alter the terms of the written agreement in violation of the parol evidence rule.

The parol evidence rule as expressed in Thurman v. Trim, 206 Kan. 118, 477 P.2d 579, is as follows:

'When a contract is complete, unambiguous and free of uncertainty, parol evidence of a prior or contemporaneous agreement or understanding, tending to vary or substitute a new and different contract for the one evidenced by the writing is inadmissible.' (Syl. 2.)

Similar statements of this well recognized rule may be found in Prophet v. Builders, Inc., 204 Kan. 268, 462 P.2d 122; Lawrence v. Sloan, 201 Kan. 270, 440 P.2d 626; and Oaks v. Hill, 182 Kan. 501, 322 P.2d 814. The prohibition against oral testimony in such case is applied to exclude testimony offered to vary the terms of the written contract. As more...