Dryden v. Rogers
| Decision Date | 06 April 1957 |
| Docket Number | No. 40475,40475 |
| Parties | James DRYDEN, Appellee, v. O. H. ROGERS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an action to cancel and rescind a written lease for a Zesto soft ice cream stand on the grounds of misrepresentation and fraud, and for restitution of rent, the record is examined and it is held: There was sufficient competent evidence to support the trial court's finding and judgment in favor of plaintiff.
Herbert H. Hopper, Wichita, argued the cause and was on the briefs for appellant.
Robert L. Davis, Wichita, argued the cause, and Carl H. Davis, Wichita, was with him on the briefs, for appellee.
This was an action to cancel and rescind a written lease on the grounds of misrepresentation and fraud, and for restitution of rent. Trial was had by the court, which rendered judgment for the plaintiff. The defendant has appealed.
We shall briefly summarize the evidence before the trial court, as follows: The plaintiff, James Dryden, in answer to a classified advertisement in a Wichita newspaper listing for lease a Zesto soft ice cream stand, telephoned the owner, O. H. Rogers, the defendant, and Dryden and his wife met Rogers at the stand where they spent an hour discussing the stand, which Rogers said was available at a monthly rent of either $250, or $180 plus a percentage of the profits. During the conversation Rogers made various statements to the Drydens to induce them to lease the stand, and explained why it was vacant. These statements, as testified to by the Drydens, concerned the profits of prior tenants, and Rogers said, 'The fellow that was in here last year, he had it on a percentage basis and in the month of June, of the year before, the $180 plus percentage brought me $500 for the month's rent.' Rogers further stated this tenant had worked at Steffens but had leased the stand for his two sons who did not pay any attention to business and that he gave the stand up in June, having made $7,000 during the three months' operations. Rogers also said, 'Another fellow that was in here bought a new home and a car with the profit he made off of this place.' Rogers further stated to the Drydens that the stand had a good trade in sandwiches and coffee during the winter months; that the rent he was asking was the cheapest in Wichita, and that it was customary for a tenant to pay in advance the rent for the three final months of the lease term.
The following day the Drydens secured a loan from their banker sufficient to enter into the lease with Rogers. The next day Dryden saw Rogers and agreed to take the stand, and a written lease was entered into on March 1, 1955, calling for annual rental of $3,000, payable at the rate of $250 per month. On that date, Dryden paid Rogers $1,506.80: $1,000 advance rental for the first month and the last three months of the lease term, $200 security deposit, and $306.80 for the inventory of supplies.
The Drydens operated the stand daily from March 3, 1955, through June, 1955, but had to borrow money each month to make the rent payment. Unable to pay the July, 1955 rental, the Drydens did not open the stand for business on July 4, 1955. On July 11, 1955, Rogers told Dryden to pay the July rent in weekly installments. On that date the stand was reopened upon payment by Dryden to Rogers of $100 in cash, and Rogers left Wichita for his summer cottage in Arkansas. On July 18, 1955, a weekly payment of $50 was made to Rogers' daughter Geraldine, and when the July 25, 1955, rental payment was not made, Rogers, through his daughter, served notice upon the Drydens to vacate, and on July 29, they cleaned up the equipment and vacated the Zesto stand.
While operating the stand and after June, 1955, Dryden ascertained the names of the prior tenants. After the Zesto stand failed to make a profit during the summer months, Dryden sought out the prior tenants only to learn that Max Jester, the tenant who had the stand during the spring of 1954 and who had worked at Steffens, had lost about $1,200 on the stand, and that Harold Ahlf, the tenant who had the stand during 1953, had also lost a great deal of money; that neither of those tenants had purchased a new house or car and that neither of them had paid Rogers $500 rent during any one month. Dryden also learned...
To continue reading
Request your trial
-
Andrews v. Hand
...that it found all facts necessary to sustain and support the judgment (Davis v. Davis, 162 Kan. 701, 704, 178 P.2d 1015; Dryden v. Rogers, 181 Kan. 154, 309 P.2d 409), which will not be disturbed on appeal if there is substantial, though controverted, evidence to sustain it (Stanley v. Stan......
-
State v. Richardson
...that it found all facts necessary to sustain and support the judgment. (Andrews v. Hand, 190 Kan. 109, 372 P.2d 559; Dryden v. Rogers, 181 Kan. 154, 309 P.2d 409; and Davis v. Davis, 162 Kan. 701, 178 P.2d The first issue suggested by the petitioner's motion to vacate the sentence was that ......
-
Hudson v. Tucker
...question of fact in support of which evidence has been introduced (Manville v. Gronniger, 182 Kan. 572, 322 P.2d 789; and Dryden v. Rogers, 181 Kan. 154, 309 P.2d 409), and a verdict or finding made by the trier of the facts and supported by evidence will not be disturbed on appeal (Hillebr......
-
Matzen v. Hugoton Production Co.
...finding, upon conflicting evidence, is not reviewable by this court (In re Estate of Osborn, 179 Kan. 365, 295 P.2d 615; Dryden v. Rogers, 181 Kan. 154, 309 P.2d 409). Generally speaking, income tax may properly be treated as an expense or cost in financial statements of companies that make......