Hays v. Underwood

• Court: Kansas Supreme Court
• Writing for the Court: FONTRON
• Citation: Hays v. Underwood, 196 Kan. 265, 411 P.2d 717 (Kan. 1966)
• Decision Date: 05 March 1966
• Docket Number: No. 44168,44168
• Parties: Russell HAYS, Appellee, v. Junius UNDERWOOD, Administrator de bonis non cum testamento annexo of the Estate of Dean Park, Deceased, Appellant. (Formerly Halcolene Stroeter, Executrix of the Estate of Dean Park, Deceased.)

Page 717

411 P.2d 717

196 Kan. 265

Russell HAYS, Appellee, v. Junius UNDERWOOD, Administrator de bonis non cum testamento annexo of the Estate of Dean Park, Deceased Appellant. (Formerly Halcolene Stroeter, Executrix of the Estate of Dean Park Deceased.)

No. 44168.

Supreme Court of Kansas.

March 5, 1966.

Rehearing Denied May 10, 1966.

Syllabus by the Court

1. Whether a written instrument or undisputed facts establish the existence and the terms of a contract are questions of law for the court, but where the evidence pertaining to the existence of a contract or the terms thereof is conflicting or admits of more than one inference a question is presented for the trier of facts.

2. The general rule that in order for an agreement to be binding it must be sufficiently definite as to its terms and requirements as to enable a court to determine what acts are to be performed, and the exceptions to the rule are considered and applied.

3. An appellate court will not consider questions not presented to or determined by the trial court.

4. Rejected testimony offered as proof of forgery considered and held not to be of sufficient probative value to require its admission under the rule that if direct evidence cannot be produced, proof may be made of any and all circumstances which have a rational or logical tendency to show the truth as to disputed matters.

5. The general rule is that liquidated demands bear interest until the time the debt is paid or merged in judgment, and the fact that the amount of a promissory note is an admitted offset against an unliquidated claim does not affect the right to interest on the liquidated offset pending final judgment.

Charles S. Fisher, Jr., Topeka, argued the cause, and O. B. Eidson, Philip H. Lewis, James W. Porter, Peter F. Caldwell, William G. Haynes, Roscoe E. Long, R. Austin Northern and Brock R. Snyder, Topeka, were with him on the briefs for appellant.

George K. Melvin, Lawrence, argued the cause and was on the briefs for appellee.

HATCHER, Commissioner.

This controversy stems from a claim filed against a decedent's estate based on an alleged breach of contract.

Dean Park died testate on September 24, 1959. His wife, Halcolene Stroeter Park, was the sole legatee under his will.

For a number of years prior to his death Dean Park was engaged in the oil production business. Park had an oil and gas lease located on the west 110 acres of a 160 acre farm in Douglas County owned by Edwin Early. Russell Hays, the claimant, owned an oil and gas lease on the east 50 acres of the Early Farm.

In his claim filed in the probate court claimant alleged that he and the decedent had entered into a written agreement on February 16, 1959, 'to provide for an imput [sic--input] well' to be used jointly by appellee and decedent for the purpose of disposing of the brine produced from the wells located on their respective leases; that under the terms of the written agreement decedent was to convert an old stripper well located on decedent's lease into an input or disposal well, and plaintiff was to give decedent a drilling location on the line between the two leases on which to drill a well to replace the loss of the stripper well which was to be converted. The claimant contends that the agreement was written by him in longhand in Dean Park's living room and that Park made a copy thereof. The agreement which was attached to the claim reads as follows:

'DISPOSAL IMPUT WELL AGREEMENT 2-16-59

'1. I gave you choice of any location on line to replace loss of joint disposal well.

'2. You convert well and get joint repressuring permit from state.

'3. If location you pick does not pay out & pay for conversion in yrs. time, then cost of imput well shall be shared on basis of produced brine from/on respective leases.

'HAYS-EARLY

'x ________

'PARK-EARLY

x Dean Park

'2 copies'

The claim further alleged that plaintiff did assign a drilling location to the decedent and that a well was drilled thereon, but that decedent did not convert or provide the joint input or disposal well and that by reason thereof claimant had a claim against the estate in the amount of $10,000.00. The claim also alleged that plaintiff owed the estate the sum of $2,000.00, with interest at six per cent, from October 1, 1959, on a promissory note which plaintiff gave to decedent on August 1, 1959, in payment for the transfer of an oil and gas lease and that this indebtedness should be considered as an offset against plaintiff's claim.

The answer, in substance, denied that the alleged contract was genuine or that it had been executed by the decedent; contended that the purported signature of the decedent on the alleged agreement was a forgery, and that the assignment of the location on plaintiff's lease was not made pursuant to the contract, but that the assignment by plaintiff and subsequent drilling by decedent was done at the request of plaintiff because he had failed and neglected to develop his lease and wanted decedent to drill thereon in order to avoid a forfeiture. It was further contended that the alleged agreement was so incomplete and uncertain that it was unenforceable.

The claim was transferred to the district court and tried to a jury. In answer to a special question the jury found that the alleged contract bore the signature of the decedent and fixed the amount of plaintiff's recovery at $8,100.00.

The representative of the decedent's estate has appealed from the verdict and judgment rendered thereon.

Appellant first contends that the trial court erred in overruling its demurrer to appellee's evidence and its motion for a directed verdict because the alleged agreement is so indefinite and uncertain that it cannot be enforced.

The appellant suggests that whether a contract shows the requisite certainty and completeness essential to its validity is a question of law to be determined by the court. We adhere to the rule that whether a written instrument or undisputed facts establish the existence and the terms of a contract are questions of law for the court's determination. (Kittel v. Krause, 185 Kan. 681, 347 P.2d 269.) However, where the evidence pertaining to the existence of a contract or the terms thereof is conflicting or admits of more than one inference a question is presented for the trier of facts. (Royer v. Western Silo Co., 99 Kan. 309, 161 P. 654.)

In considering the above rules for what importance they may have in determining the issues before us for consideration, it should be understood that the sufficiency of the written instrument to create a binding agreement was not specifically challenged until the appellee's evidence, much of which was not controverted, was before the court.

The appellant further calls our attention to the generally recognized rule that in order for an agreement to be binding it must be sufficiently definite as to its terms and requirements as to enable a court to determine what acts are to be performed and when performance is complete. The court must be able to fix definitely the legal liability of the party. We have adhered to this general rule. (Nichols v. Coppock, 124 Kan. 652, 261 P. 574; Stratford v. Petticord, 108 Kan. 775, 197 P. 221; Price v. Weisner, 83 Kan. 343, 111 P.2d 439, 31 L.R.A.,N.S., 927.)

Again, however, the courts generally have so far deviated from the general rule and set up so many exceptions that it is an exceptional case where the rule can be followed as a complete guide to the determination of the sufficiency and definiteness of the terms of a contract.

The courts will so construe an instrument as to carry the intention of the parties into effect where possible. (Richardson Gas & Oil Co. v. City of Altoona, 79 Kan. 466, 100 P. 50, 21 AL.R.A.,N.S., 214.) The law will favor upholding a contract against a claim of uncertainty where one of the parties has performed his part of the contract. A contract may contain imperfections or be lacking in detail but it will not be held void for uncertainty if the court, under the recognized rules of construction, can ascertain the terms and conditions by which the parties intended to be bound. (Bonesteel v. White, 127 Kan. 843, 275 P. 163.) It matters not that the court must resort to extrinsic facts to ascertain the exact meaning of the language used. (Clark v. Larkin, 172 Kan. 284, 239 P.2d 970; Steele v. Nelson, 139 Kan. 559, 32 P.2d 253.) In Beech Aircraft Corporation v. Ross (CA 10 Kan.), 155 F.2d 615, it was said at page 617:

'* * * The courts will not permit a contract to fail for the want of a formal detail, which can be supplied within the frame work of the contract itself. * * *' (A general discussion of the rule on definiteness and certainty will be found in 17 Am.Jur.2d, Contracts, § 75, et seq.)

The appellant specifically contends that the written instrument is indefinite in three particulars, i. e. (1) it fails to specify what kind of a well was to be created for the parties' joint use; (2) the phrase, 'shared on basis of produced brine from on respective leases,' is not clear, and (3) the parties are not identified in the body of the instrument.

We find no merit in the appellant's contention. The written instrument and the testimony of the appellee left no question but that the parties were interested in a well into which they could 'put' or 'dispose' of the salt water which was produced with the oil. The well was also to be used for repressuring because such a permit was to be obtained from the state. The parties desired the well to serve two purposes--a well in which to dispose of the salt water and also a well to be used for repressuring. As the well was to serve a duel purpose it mattered little by which name it was designated in the written instrument.

If the phrase, 'cost of imput well shall be share on the basis of produced brine from on respective leases,' is indefinite, the indefiniteness was cured by performance as the well was drilled and 'paid out' for the...