Gunnison v. Evans

• Decision Date: 28 January 1933
• Docket Number: 30869.
• Citation: 136 Kan. 791,18 P.2d 191
• Parties: GUNNISON v. EVANS et ux. [*]
• Court: Kansas Supreme Court

18 P.2d 191

136 Kan. 791

GUNNISON v. EVANS et ux. ^[*]

No. 30869.

Supreme Court of Kansas

January 28, 1933

Syllabus by the Court.

Where plaintiff promised defendants might occupy plaintiff's home as long as they wished by performing conditions specified, defendants' performance constituted acceptance and consideration.

Plaintiff's promise to permit defendants to occupy plaintiff's home as long as they wished granted privilege of occupying premises for life, subject to continuing performance or tender of performance of conditions specified.

Lee Gunnison, a widower, who owned real estate which he occupied as his home, promised in writing that Fred K. Evans and his wife, who were then living with Gunnison, might occupy the home as long as they wished, he reserving a room for his own use, they to furnish him board without charge, and they to pay gas, light, and water bills. Held:

1. A return promise to perform the conditions of the offer was not invited, and was not essential to the formation of a contract.

2. Performance of the conditions of the offer constituted both acceptance of the offer and consideration for the contract thereby created.

3. The contract operated to vest in Evans and wife privilege to occupy the premises for life if they chose to do so, subject to continuing performance or tender of performance on their part of the conditions of the contract.

Appeal from District Court, Atchison County; W. A. Jackson, Judge.

Action by Lee Gunnison against Fred K. Evans and wife. Judgment for plaintiff, and defendants appeal.

Judgment reversed, and cause remanded, with directions.

W. P Waggener, J. M. Challiss, O. P. May, and B. P. Waggener, all of Atchison, for appellants.

T. A Moxcey, of Atchison, for appellee.

BURCH J.

The action was one of ejectment and for rents and profits. The district court returned findings of fact and conclusions of law pursuant to which judgment was rendered for plaintiff. Defendants appeal. The findings of fact are accepted as correct, but soundness of the conclusions of law is challenged.

In 1926, Lee Gunnison, the plaintiff, was owner of two adjoining residences, described as No. 404 and No. 408 North Seventh street, in the city of Atchison. Plaintiff and his wife Bertha Gunnison, occupied No. 404. Defendants, Fred K. Evans and Cora M. Evans, are husband and wife, and Bertha Gunnison was a sister of Mrs. Evans.

In February, 1926, plaintiff sold No. 408 to defendants for $4,000, $1,200 cash, and the remainder payable in installments of $50 per month. Defendants took possession and occupied the property as their home until after the death of Bertha Gunnison, which occurred in March, 1928. After death of his wife, plaintiff continued to reside in his own home, and when in Atchison boarded with defendants. There was no agreement respecting payment for board, but plaintiff did make some payments on account of his board. The eighth and ninth findings of fact follow:

"8th. The plaintiff, Gunnison, was residing alone in his home at 404 North Seventh street, which was fully furnished with household furniture and appliances, and of the approximate value of fifteen hundred ($1,500) dollars, and at times while he was in the home of the defendants, 408 North Seventh street, made the suggestion to defendants that they come over and live in his home at 404 North Seventh street, and that he would board with them and retain one room for his sleeping apartment, and that they, the defendants, would thereby be able to rent the property 408 North Seventh street which they were then buying on installments from the plaintiff, and that the rents which they would receive from their property would substantially meet the installment payments thereon as they matured.

"9th. About October 1, 1928, the defendants did move to the Gunnison home at 404 North Seventh street, and brought a part of their household goods with them. *** The Evans home at 408 North Seventh street was immediately rented at thirty-five ($35) dollars per month, and has since and still is so rented, and the defendants receive the rent therefor."

Plaintiff had told defendants he had not been married previous to his marriage to Bertha Gunnison. He had in fact been married, had children by that marriage, and his former wife was living. Soon after defendants moved into the Gunnison home, plaintiff made a trip to Detroit to purchase an automobile. On the way home, he stopped in Indiana and made an investigation concerning his family. A few days after he returned home, he received a letter from his daughter, Mrs. Payne, who lived in Coffeyville, Kan., and who had a son 8 years old. Plaintiff went to Coffeyville, and on October 9 he brought his daughter to Atchison, took her to a hotel, and went home alone. Material portions of the tenth finding of fact read as follows:

"The defendant, Cora M. Evans, after receiving a telephone message from her daughter that Mr. Gunnison and some woman had appeared in town, was much disturbed, and believed that Mr. Gunnison had remarried. On the arrival of Mr. Gunnison at the home he assured the defendant, Cora M. Evans, that he had not remarried, and that the lady with him was not his wife, and advised her that the lady was his daughter. Mrs. Evans, being disturbed as indicated above, said to Mr. Gunnison that she wanted some insurance that she could stay in the house (the Gunnison home) for awhile at least, and Mr. Gunnison thereon stepped into an adjoining room and wrote the following:

"'I, Lee Gunnison, of sound mind, do promise and say that the family of Fred K. Evans may occupy and use just as they see fit the contents therein of my home at 404 North Seventh street, Atchison, Kansas, as long as they [wish] or until they get their home paid for, or longer if they wish. I reserve a room for my own use, and board or meals for which no charge will be asked, they to pay gas, light, and water. No one shall set them out, or interfere with plans made by them.

"'10-9-28. Lee Gunnison,

"'Atchison, Kansas.'

"Gunnison having so written, stepped in the room where the defendants, Mr. & Mrs. Evans, were, and handed the writing to Mrs. Evans, and said, 'Cora, I hope that this will ease your mind.' The defendants received the document prepared by the plaintiff, and filed the same in the office of the register of deeds in Atchison county, Kansas, on February 23, 1929, at 11:00 a. m. The next morning Mr. Gunnison left for Indiana with his daughter, where they located others of his children by former marriage. Mr. Gunnison was thereafter in Atchison on different occasions at his home and with defendants until July, 1929, but spent most of his time with his daughter in Coffeyville, or on trips with her. He brought her to Atchison and to his home where the defendants lived, on a number of occasions. *** At one time Mrs. Payne and her minor son stayed with Mr. Gunnison in Atchison at the home for one to two weeks, during which time Mr. Gunnison paid one-half of the grocery bill of the household."

The inevitable occurred, friction arose, and in September, 1929 plaintiff notified defendants to leave No. 404 within thirty days. Some payments on the purchase price of No. 408 being in default, plaintiff employed an attorney to collect them. The contract of purchase matured on April 7, 1930. On April 2, 1930, defendants mortgaged No. 408 for $1,800, satisfied the contract of purchase in full, and received a deed. At the time of trial, de...