Gardner v. Spurlock

• Decision Date: 16 May 1959
• Docket Number: No. 41339,41339
• Citation: 184 Kan. 765,339 P.2d 65
• Parties: Marie GARDNER, Appellant, v. Marvin SPURLOCK and Georgia Spurlock, Appellees.
• Court: Kansas Supreme Court

Page 65

339 P.2d 65

184 Kan. 765

Marie GARDNER, Appellant, v. Marvin SPURLOCK and Georgia Spurlock, Appellees.

No. 41339.

Supreme Court of Kansas.

May 16, 1959.

Syllabus by the Court

1. The interpretation of a written contract, free from ambiguity, is a judicial function and does not require oral testimony to determine its meaning. Ambiguity in a written instrument does not appear until application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.

2. Where parties have oral negotiations and later enter into a written contract covering the subject matter, such contract evidences the final agreement of the parties and parol testimony of prior negotiations is not admissible and may not be considered by the court where the contract is complete, unambiguous and free from uncertainty.

3. Where a defendant had not objected to payment by tender of a cashier's check of the amount due under a contract to repurchase real estate but refused to reconvey the property upon entirely different grounds, as more fully set forth in the opinion, he waived his right to object to the medium of payment upon the ground that it was not legal tender.

4. A tender or demand otherwise indispensable is no longer required when its futility is shown.

5. Where the exercise of an option contemplates tender of the purchase price as a part of the acceptance, repudiation of the contract by the optionor in the face of readiness, willingness and ability to conform on the part of the optionee excuses tender during the time limit of the contract and entitles the optionee to all available remedies including specific performance.

6. The record in an action involving a written contract giving the plaintiff the option to repurchase real estate, examined and held: The trial court erred (1) in finding and concluding that plaintiff made an assignment of her option to repurchase constituting a breach of her contract with the defendant, and (2) in failing to enter judgment in favor of plaintiff decreeing specific performance of the contract dated January 11, 1957.

A. A. Bryan and Robert H. Miller, Paola, were on the briefs for appellant.

Oliver D. Rinehart and William D. Bright, Paola, were on the briefs for appellees.

FATZER, Justice.

This was an action for specific performance of a written contract to repurchase certain farm land. Trial was by the court, and judgment was rendered for the defendants. The plaintiff has appealed from the judgment and the order overruling her motion for a new trial.

Pertinent facts are summarized and quoted as follows: The appellant, Mary Gardner, a widow in her eighties, was on January 11, 1957, and for many years prior thereto, the owner of 77 acres of land off the south side of the Southwest Quarter, Section 29, Township 16, Range 25, Miami county, Kansas. One Rogers held a mortgage upon the property and had secured a judgment in foreclosure; the land was advertised for sale by the sheriff, but had not been sold. There was another mortgage on the land in favor of a bank in Peculiar, Missouri.

Early in January 1957 Marvin Spurlock went to appellant's home to discuss the foreclosure of the 77 acre tract. Appellant thought Spurlock wanted to loan her money. He testified he told her he was not in the loan business but wanted to buy her land. As a result of their negotiations appellant and Spurlock entered into a written agreement whereby appellant agreed to sell and convey the 77 acre tract to Spurlock for $5,800, but reserved the right to the crops for the farm year 1957. The agreement further provided:

'It Is Further Agreed that the first party (appellant) shall have * * * until October 15, 1957, a first and prior option to repurchase said lands from second party for the agreed price of $6150, second party agreeing to convey to the first party, in case said option is exercised, by a Quit-Claim Deed and first party shall accept the title as it then is, second party making no warranty of title. The option shall be nonassignable by first party and no extension thereof shall be valid unless in writing and signed by the parties hereto. Second party agrees to create no encumbrance on said realty during the option period.'

Appellee Georgia Spurlock, wife of Marvin, was not a party to the agreement.

Spurlock paid the purchase price of $5,800 pursuant to the agreement by paying the judgment and costs in the foreclosure action of Rogers versus Gardner; the mortgage to the bank at Peculiar, Missouri, and the balance of about $1,000 was paid to appellant in cash.

With respect to the option to repurchase, appellant testified simply that, 'I understood I could buy it (the land) back.' Spurlock, however, testified that prior to the execution of the contract that, 'I told her I either wanted the property for myself or wanted her to have it. * * * That if she would sell it to me and she get the money to buy it back within a certain reasonable period that I would sell it back to her if she would keep it for her own,' and she said, 'That is just the way I want it.'

During the first week in September, 1957, appellant listed the 77 acre tract for sale with D. A. Glenn, a realtor in Louisburg, Kansas. On October 3, 1957, Glenn sold the property to J. H. Phillips and his wife for $9,725, the terms of which were set forth in a written contract between appellant and the Phillips. No reference was made in the Phillips' contract to the agreement between appellant and Spurlock or of her option to repurchase the land. The Phillips' contract provided for an outright purchase of the 77 acre tract from appellant and she agreed to convey the property to them by warranty deed.

Phillips deposited $500 as earnest money and gave Glenn a cashier's check issued by the Overland Park State Bank, Overland Park, Kansas, dated October 7, 1957, in the amount of $6,150 payable to Marie Gardner and D. A. Glenn, Realtor. This cashier's check was endorsed by appellant and repeatedly tendered to Spurlock with the request he reconvey the land pursuant to their agreement.

On October 7, 1957, appellant, Glenn and some of appellant's friends went to Spurlock's home near Louisburg and appellant tendered to Spurlock the cashier's check for $6,150 and requested that he and his wife reconvey the property to her. Spurlock replied that his wife did not have to sign the deed and he would do nothing until he saw his attorney, however, he agreed to meet them at the bank in Louisburg in a day or so.

On October 9, 1957, appellant, Glenn and her friends met with Spurlock in the directors' room of the bank. Glenn placed the cashier's check on the table in front of Spurlock and said, 'If you will sign this deed (exhibiting a deed to be signed by both Spurlock and his wife) Mrs. Gardner will give you the money for this cashier's check. It is right here.' Spurlock said, 'No, I won't sign it. My wife don't have to sign it and I want to talk to my attorney.' Spurlock agreed to meet them again later in the same week.

On October 11, 1957, the parties met in the office of appellant's attorney in Paola. Spurlock's counsel was present, but appellant was unable to climb the stairs so she waited in the car. Glenn told Spurlock and his attorney that he had the cashier's check for $6,150, which he took out of his pocket and said he would deliver it to Spurlock if he and his wife would sign the deed. Spurlock said, 'Nothing doing, I won't sign'; Glenn asked 'When will you sign,' and Spurlock replied, 'We will let you know Saturday or Monday.' As in former meetings, Spurlock made no objection to the cashier's check nor did he at any time ask for cash.

Appellant and Glenn attempted to locate Spurlock on Saturday, October 12, 1957, and again on Monday, October 14, 1957, but could not find him. Spurlock testified he made no attempt to contact appellant or Glenn on October 14, 1957, and in fact was out of town and could not have been contacted in the Louisburg area on that date.

On Tuesday, October 15, 1957, appellant, Glenn and her friends went to Spurlock's home and had a conference with him. Glenn again exhibited and tendered the cashier's check and requested that both Spurlock and his wife execute a quitclaim deed to appellant. But, Spurlock refused. Glenn then exhibited a quitclaim deed prepared for Spurlock's signature alone and said, 'You sign this yourself and we will sign this check over to you.' Spurlock refused to sign the deed. Of this conversation Spurlock testified 'The thing I had in mind was the 9 months was up and I had an interest here and I didn't feel like doing something that would jeopardize my interest.'

Appellant first contends the trial court's findings of fact and conclusions of law reformed the contract between her and Spurlock, and argues this was error.

The trial court found, among other things, that the provision against assignment of the option agreement was 'explained' by an oral 'agreement' between the parties that if appellant wanted the land for herself Spurlock was to reconvey, otherwise he was to keep the land. The finding reads:

'The contract also carried the agreement that the option was not 'assignable' and the explanation was that the parties agreed that if she could repurchase for her own use, defendant would re-convey. If not, he was to keep the land.' (Emphasis supplied.)

That finding was based upon an alleged conversation testified to by Spurlock only, which occurred prior to the time the written contract was entered into. Appellant contends the court modified and reformed the written contract by injecting into its finding oral statements supposedly made by the parties prior to the time their agreement was reduced to writing.

The record does not disclose affirmatively that the trial court ruled on whether the contract was free from ambiguity, but its findings of fact and conclusions of law indicate it was the opinion of the...