Evans v. Lynch

• Decision Date: 27 January 1968
• Docket Number: No. 44905,44905
• Citation: 200 Kan. 331,436 P.2d 867
• Parties: Thomas M. EVANS, Appellant, v. John A. and Maureen C. LYNCH. Appellees.
• Court: Kansas Supreme Court

Page 867

436 P.2d 867

200 Kan. 331

Thomas M. EVANS, Appellant, v. John A. and Maureen C. LYNCH. Appellees.

No. 44905.

Supreme Court of Kansas.

Jan. 27, 1968.

Syllabus by the Court

1. Where no material issue of fact is in dispute, an action may be disposed of by summary judgment, pursuant to the provisions of K.S.A. 60-256.

2. It is elementary that an oral agreement for the sale of real estate is unenforceable under the statute of frauds unless the same has been taken out of the statute by partial performance.

3. An oral agreement for the sale of real estate which is unenforceable under the statute of frauds affords no basis for an action to recover damages occasioned by its breach.

4. The record is examined in an action to recover damages resultiang from the breach of an alleged oral contract for the sale of a house and it is held: (1) The circumstances shown in the opinion do not meet the test required to remove an oral agreement from the statute of frauds on the basis of partial performance; (2) there being no material issues of fact in dispute the trial court correctly entered summary judgment for the defendants.

Frank C. Sabatini, Topeka, argued the cause and was on the brief for appellant.

Arthur E. Palmer, Topeka, argued the cause, and Marlin S. Casey, Ernest J. Rice, Murray F. Hardesty, Glenn D. Cogswell, Gerald L. Goodell, Wayne T. Stratton, Robert E. Edmonds, and Thomas E. Wright, Topeka, were with him on the brief for appellees.

FONTRON, Justice.

This action stems from a series of transactions occurring in 1963 and 1964 which the plaintiff, Thomas M. Eveans, contends resulted in an agreement on the part of Dr. and Mrs. Lynch, the defendants, to purchase certain real estate. The trial court sustained the defendants' motion for summary judgment and the plaintiff has appealed. The parties will be referred to either by name or as plaintiff and defendants, respectively.

On July 15, 1963, the parties entered into a written lease under the terms of which the defendants leased a Topeka residence from the plaintiff for a term of twelve months, commencing July 22, 1963, at a monthly rental of $225. The lease contained a provision giving defendants the right to purchase the property during the period covered by the lease for the sum of $36,000, less a credit of one-half the rent already paid.

Contemporaneously with the lease the parties executed a written agreement which provided that Evens, in consideration of the lease, granted defendants the option to purchase the property on the following terms: 1. Dr. and Mrs. Lynch agreed that prior to January 22, 1964, they would enter into a purchase agreement with plaintiff or give written notice they did not wish to purchase. 2. If defendants declined to buy the property, the written lease should remain in force until its natural expiration. 3. Should defendants elect to buy the property, a purchase agreement should be executed forthwith. 4. That if the defendants moved from Topeka after the option was exercised, but before July 22, 1964, plaintiff would repurchase the property under certain prescribed conditions.

On January 14, 1964, the parties executed an additional written agreement extending the defendants' option from January 228 1964, to April 22, 1964, and providing that all other covenants contained in their original agreement should remain in full force. It was at this time, according to plaintiff's answers to interrogatories, that Dr. Lynch orally promised to buy the property unless he moved from Topeka and that plaintiff relied thereon in extending the option.

In March, 1964, Dr. Lynch had a talk with Dana Anderson, the plaintiff's agent, in which the price of the house was discussed. Anderson then got in touch with Evans who lowered the price of the house to $32,000. Lynch, however, would neither accept this new proposal nor make a counter offer, as requested by Anderson. Soon after the foregoing conversation took place, Lynch notified Anderson that he would not purchase the house and also gave a thirty day notice of his intention to move. Lynch adopted this course of action because he and his wife had decided to buy another house. It is conceded that Dr. Lynch did not move from Topeka but that he and his wife are still living in that city.

We believe the trial court was correct in entering summary judgment for the defendants, since it is apparent that no material issue of fact was in dispute. Where appropriate pretrial procedures reveal there are no unresolved issues of material facts, an action may be disposed of summarily under the provisions of K.S.A. 60-256. (Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964; Wilson v. Deer, 197 Kan. 171, 415 P.2d 289.)

It is nowhere contended that a written contract for the sale of plaintiff's house was ever executed. The only reference we find in the record which concerns a contract of sale appears in the plaintiff's answers to interrogatories, where he states that at the time the defendants' option was extended, Dr. Lynch represented he would buy the house unless he moved from Topeka. This alleged representation, admittedly oral, is construed by Evans as constituting a promise on Lynch's part to purchase the house.

Dr. Lynch vigorously denies making any such oral promise to purchase, but whether he did or not is immaterial so far as this case is concerned. An oral agreement for the sale of real estate is unenforceable under the statute of frauds (K.S.A. 33-106) unless it has been removed from the statute by partial performance. (Baldridge v. Centgraf, 82 Kan. 240, 108 P. 83.) This elementary proposition is recognized by the plaintiff, but he points out that the present action is not...