Crouch v. Marrs
| Citation | 430 P.2d 204,199 Kan. 387 |
| Decision Date | 12 July 1967 |
| Docket Number | No. 44763,44763 |
| Parties | Phillip CROUCH, Appellant, v. Roy MARRS, Martin Asche, the Purex Corporation, Ltd., a Corporation, Frank Knox and C. & D. Used Truck Parts, Appellees. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. An offer may be accepted by performing a specified act or by the offeree exercising dominion over the thing offered him, as well as by an affirmative answer.
2. The endorsing and depositing a check, accompanying an offer to purchase property, constituted an acceptance of the offer under the facts and circumstances stated in the opinion.
Robert M. Baker, Ashland, argued the cause and was on the briefs, for appellant.
Don Smith, Dodge City, argued the cause, and R. R. Mitchell and B. G. Larson, Dodge City, and Bradley Post and E. Keith Beard, Meade, were with him on the briefs, for appellees.
HATCHER, Commissioner:
This was an action to enjoin interference with plaintiff's right of ingress and egress to land on which was located a building he was attempting to salvage. The result of the action was to have the title to the building determined.
Judgment was rendered against plaintiff and he has appealed.
At the outset we are confronted with appellees' contention that the appeal should be dismissed because of the failure of appellant to take a procedural step within the time required by the rules for appellate review. This question will be determined before we proceed with a consideration of the appeal on the merits.
Appellees' contention is well stated in its brief as follows:
'Under Rules of the Supreme Court, Sec. 60-2701, No. 6(a), K.S.A., if, as in this case, no stenographic transcript of proceedings in the District Court is required, the designation of the contents of the record and also the statement of points (Rule No. 6(d)), 'shall be served and filed in the District Court within ten (10) days from the filing of the notice of appeal.' Appellees believe the record has not (now) been clarified and that the notice of appeal was served on June 15, 1966, and was filed on June 16, 1966; and that appellant's designation of the record and statement of points were served on June 29, 1966, and were filed on June 30, 1966.
'Thus the record clearly shows that appellant did not comply with the requirements of this rule as more than ten (10) days elapsed between the time appellant filed and served his notice of appeal and the time appellant filed and served his designation of the record and his statement of points.' (Emphasis supplied.)
Disposition was made of the case on motion for summary judgment, hence no transcript was required for appeal. The two rules mentioned by appellees are Rule 6(a) which provides in part:
'If no stenographic transcript of proceedings in the district court is required to be prepared for an appeal, the designation of the contents of the record by the appellant shall be served and filed in the district court within ten (10) days from the filing of the notice of appeal. * * *'
and that part of Rule 6(d) which reads in part:
'Each appellant shall serve and file with his designation of the record a concise statement of the points on which he intends to rely and which will be briefed in the appeal. * * *'
The effect of the violation of the above rules and provisions for extension of time are to be found in Rule 6(q) which reads:
* * *' The rules mentioned are procedural in nature and not jurisdictional. The failure of the members of the bar to abide by the rules has given this court many troublesome moments. Because we do not think that a litigant should be denied the right of appeal on technical procedural grounds, we have simply ignored the rule where the time violation was not unreasonable. Having ignored the rule in the past in order that no litigant be denied the right to appeal, we are not inclined to make a strict application of the rule at this time and apply the only sanction available which is the dismissal of the appeal. We favor a liberal application of the rules of appellate procedure in order that a litigant not be denied his statutory right to appeal.
It should be suggested that in an attempt to make the application of the rules definite, Rule 6(q) was amended to become effective January 1, 1967, by inserting the following:
* * *' (See 197 Kan. LXIV.)
The addition did not prevent delay in filing but did make it more difficult to grant relief. This court has again amended the rule by changing the above provision to read as follows:
'* * * No application for an extension of time in which to complete any step may be considered by the Judge of the court from which the appeal is taken unless such application is filed prior to the expiration of the period of time which is sought to be extended, except in those cases where the failure to file such application before the time has expired is the result of excusable neglect. * * *' (199, No. 2.)
The amendment took effect July 1, 1967.
It is hoped that this amendment will make enforceable the rule for orderly appellate procedure by leaving the extension of time in the discretion of the trial judge who is familiar with the facts.
Approaching the merits of the controversy the facts do not appear to be in dispute.
Six miles north of Meade, Kansas was an old silica processing plant which was owned by the Purex Corporation of Lakewood, California. The plant had not been used for many years.
On February 26, 1964, the plaintiff, Crouch, wrote to the Purex Corporation asking for their lowest price if they were interested in selling the building and its contents. The letter read in part:
On March 4, 1964, Crouch received a letter of reply from Purex Corporation signed by Frank Knox which stated:
'We will sell this building and the equipment in and about that building for a total of $500.'
On March 19, 1964, Crouch wrote to Frank Knox, Purex Corporation, stating that the building was in 'pretty bad condition' and asking 'would you consider taking $300.00 for what is left?' This letter was not answered.
Later, on April 16, 1964, Crouch addressed another letter to Frank Knox, Purex Corporation, which read:
'I guess we will try the building for the amount you quoted, $500.
'I am sending you a personal check for this amount.
'It will be 2 or 3 weeks before we can get started; and I presume that we will be allowed all the time that we need to remove the material.'
It is conceded that letter constituted a new offer and was not a continuation of the previous negotiations.
The record discloses the following information relative to the check mentioned in the above letter:
Endorsement: Frank Knox
Pay to the order of Purex Corporation
Frank Knox
Pay to order of California Bank
Purex Corporation Ltd.
'The original check which is this exhibit, also has the customary numerous clearing house stamps on the back; among them:
April 23, 1964, Los Angeles Clearing House
'The check was paid and cancelled by the Piqua Bank on April 29, 1964.'
On April 17, 1964, the Purex Corporation, through Frank Knox, wrote a letter to Martin Asche which stated:
'In answer to your inquiry about our property approximately six miles north of Meade, Kansas.
'If this price is acceptable we will be pleased to receive a cashier's check to cover.'
On April 24, 1964, Asche wrote a letter accepting the offer of April 17, which reads:
'We are enclosing a cashier's check for $500 and the bill of sale of mine buildings with the agreement of option to purchase property.
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