Byerley v. Braucher

• Decision Date: 09 March 1957
• Docket Number: No. 40427,40427
• Citation: 308 P.2d 144,180 Kan. 816
• Parties: W. A. BYERLEY, a/k/a William A. Byerley, Appellee, v. J. W. BRAUCHER, a/k/a Joseph W. Braucher, Appellant.
• Court: Kansas Supreme Court

Page 144

308 P.2d 144

180 Kan. 816

W. A. BYERLEY, a/k/a William A. Byerley, Appellee, v. J. W. BRAUCHER, a/k/a Joseph W. Braucher, Appellant.

No. 40427.

Supreme Court of Kansas.

March 9, 1957.

Rehearing Denied May 15, 1957.

Syllabus by the Court

1. A petition examined on appeal from motion to strike and demurrer, and following decisions cited and discussed in the opinion it is held the petition states facts sufficient to constitute a cause of action and motion to strike was properly overruled.

2. The statute of limitations may properly be raised by demurrer where the complaint shows on its face that the action is barred. Likewise, a petition on its face which does not clearly show the action is barred by limitation is not subject to demurrer.

3. The rule of strict construction against a pleading on demurrer was never intended to apply where a general demurrer follows a previously overruled unmeritorious motion, but if a meritorious motion to make more definite and certain is filed and successfully resisted, followed by general demurrer, then those matters covered by the motion must be strictly construed against the pleader in considering the sufficiency of the pleading. Likewise, a general demurrer later leveled at the pleading must be considered in view of all the contents and not merely with respect to some isolated paragraph of the pleading.

4. A petition is not demurrable as barred by statute of limitations where on its face no time for performance or termination is stated in the contract or agreement relied upon, if extraneous reasons or acts of the parties taking it out of the statute and relating to the contract or agreement are alleged; otherwise, a reasonable time for such performance or termination will not extend beyond the statutory limitation time for bringing the action.

5. Motions to strike redundant, irrelevant and incompetent matter in a pleading are directed to the sound discretion of the trial court.

6. It is the duty of the pleader to state the ultimate facts clearly and concisely and without repetition.

Howard M. Immel, Iola, argued the cause, and Robt. L. NeSmith and Justus H. Fugate, Wichita, were with him on the briefs, for appellant.

Robert F. Stadler, Humboldt, argued the cause, and L. T. Cannon, Humboldt, was with him on the briefs, for appellee.

HALL, Justice.

This appeal is from an order of the district court overruling a demurrer to an amended petition and from an order of the court overruling portions of a motion to strike.

On January 10, 1956, the plaintiff filed a petition against the defendant alleging in substance the following:

That on the sixth day of January, 1935, the plaintiff was the owner of certain shares of stock in the Humboldt National Bank and that on the same date the plaintiff and defendant entered into the following written agreement.

Exhibit 'A'

'Witnesseth This agreement made this the 6th day of January 1935 by and between William A. Byerley, party of the first part and Joseph W. Braucher, party of the second part, both of Humboldt, Allen County, Kansas.

'For and in consideration of a good and valuable consideration the receipt of which is hereby acknowledged, the said party of the first part agrees to sell to the said party of the second part three (3) shares of the stock of the Humboldt National Bank for One Hundred Dollars per share.

'It is further agreed that upon request by either of the parties hereto, the party of the second part agrees to sell back to the party of the first part and the party of the first agrees to buy from the party of the second part three (3) shares of the stock of the Humboldt National Bank at One Hundred Dollars per share ($100.00).

'W. A. Byerley, Party of the First Part.

'J. W. Braucher, Party of the Second Part.

'Witness........'

The plaintiff then alleges:

That this agreement has remained in full force and effect since made and had never been cancelled, amended, repudiated, abrogated or disaffirmed by either of the parties. That the agreement had never been revoked or withdrawn by the defendant. That on or about December 20, 1955, the plaintiff orally informed the defendant that he desired to purchase back the three shares of stock and the defendant orally informed the plaintiff that he would not resell or sell back to the plaintiff the three shares of stock. That on January 5, 1956, the plaintiff again informed the defendant orally and in writing that he desired to exercise his rights under the said agreement and buy back the three shares for the agreed sum of $100 per share. The defendant again informed the plaintiff he would not sell.

That at the time the agreement was made, the defendant was the owner of seven shares of stock in the bank and the plaintiff was the largest stockholder and President of the bank. That a vacancy existed on the Board of Directors and it was necessary for a director to own ten shares of stock. That the plaintiff approached the defendant to ask him to serve as director and that since the defendant needed three additional shares of stock to qualify, the plaintiff would sell him the necessary three shares. That, although the agreed price was $100 per share, the true value was greatly in excess of that amount.

That as a result of these negotiations, the above agreement was made and the defendant was elected a director of the bank and has been re-elected from time to time to the present and has served continuously.

Wherefore, the plaintiff prayed for specific performance of the agreement.

A motion to strike was filed February 7, 1956, by the defendant. The court sustained the motion in part and overruled it in part.

An amended petition was filed March 14, 1956, complying with the court's motion to strike and the defendant demurred for the reason that the petition did not state facts sufficient to constitute a cause of action and for the reason 'it appears on the face of the petition that the cause of action was barred by the statute of limitations [G.S.1949, 60-306, subd. 1], providing that an action upon any agreement, contract, or promise in writing can only be brought within five (5) years after the cause of action shall have accrued.'

The court overruled the demurrer and this appeal was taken. The specification of error also includes the ruling of the court denying paragraphs 1 and 2 of appellant's motion to strike.

Appellant contends the question of the statute of limitations is properly raised by demurrer. It may be so raised. Where the complaint shows on its face that the action is barred, the defense of limitation may be raised by demurrer.

See Ryan v. Scovill, 147 Kan. 748, 751, 78 P.2d 877, 878, where the court said:

'* * * They argue, also' that the statute of limitations should be raised by answer. However, it has been repeatedly held that where a petition discloses on its face that the cause of action is barred by the statute of limitations the question may be raised by demurrer to the petition. See Kansas State Bank v. Shaible, 118 Kan. 73, 234 P. 40, and many other cases noted in Hatch.Dig. § 189, Lim. of Act. * * *'

See, also, Pease v. Snyder, 172 Kan. 257, 240 P.2d 134; Force v. Bates, 177 Kan. 438, 280 P.2d 584; Stratton v. Wood Construction Co., 178 Kan. 269, 284 P.2d 636; and Fakes v. Osborne, 178 Kan. 339, 286 P.2d 154.

The rule is a two-edged sword. The rule is also well established that a demurrer should be overruled if the amended petition on its face does not clearly show the action is barred by limitation. Walker v. Fleming, 37 Kan. 171, 14 P. 470; Nickel v. Vogel, 76 Kan. 625, 92 P. 1105; Christie v. Scott, 77 Kan. 257, 94 P. 214; and Chandler v. Runnels, 138 Kan. 673, 27 P.2d 232.

Appellant contends that on this demurrer a strict rule of construction of the petition must be applied following Kinderknecht v. Hensley, 160 Kan. 637, 164 P.2d 105. The court is not bound by the rule in this case.

As a general proposition, the rule of strict construction has only been applied after motions to make more definite and certain and not after motions to strike. It also was never intended to apply where a general demurrer follows a previously overruled unmeritorious motion, but if a meritorious motion to make definite and certain is filed and successfully resisted, followed by general demurrer, then those matters covered by the motion must be strictly construed against the pleader in considering the sufficiency of the pleadings. Likewise, a general demurrer later leveled at the pleading must be considered in view of all of the contents and not merely with respect to some isolated paragraph of the pleading. Morris v. Dines Mining Co., 174 Kan. 216, 256 P.2d 129; Clark v. Hildreth, 179 Kan. 243, 293 P.2d 989; and Cessna v. Coffeyville Racing Association, 179 Kan. 766, 298 P.2d 265.

Appellant argues that the amended petition is subject to demurrer because on its face no time is stated in the contract in which performance thereof must be demanded and, therefore, the demand must be made within a reasonable time and a reasonable time must not extend beyond the statutory time for bringing the suit, which in this case would be five years.

In support of his contention appellant cites West v. Topeka Sav. Bank, 66 Kan. 524, 72 P. 252, 63 L.R.A. 137; Ryan v. Scovill, 147 Kan. 748, 78 P.2d 877; and Marsh v. Brown-Crummer Inv. Co., 138 Kan. 123, 23 P.2d 465, 469, 88 A.L.R. 835. Appellant argues vigorously that the Marsh case is completely analogous to the point here. We do not agree. The court said:

'Appellee argues that after the bonds mentioned in the first cause of action were purchased, subsequent purchases were made, at which times the first contract was 'acknowledged, admitted and renewed' and that if appellant had suggested when the second and succeeding purchases were made it would no longer be obligated, an immediate demand for repurchase would have been made. This may all be true, but it is not alleged in the first cause of action that the contract...