Heckard v. Park

• Decision Date: 24 January 1948
• Docket Number: 36945.
• Citation: 164 Kan. 216,188 P.2d 926
• Parties: HECKARD v. PARK.
• Court: Kansas Supreme Court

188 P.2d 926

164 Kan. 216

HECKARD v. PARK.

No. 36945.

Supreme Court of Kansas

January 24, 1948

Appeal from District Court, Sedgwick County; Ross McCormick, Judge.

Suit by Bessie B. Heckard against Lucile Jeannie Park for an accounting and for specific performance of a written contract. From an order sustaining a general demurrer to an amended petition, the plaintiff appeals.

Reversed.

Syllabus by the Court.

1. Unless a contract binds the parties thereto it lacks mutuality and is unenforceable.

2. A contract is always give a reasonable rather than an unreasonable interpretation.

3. Where ambiguity or uncertainty is involved the intention is not ascertained by punctuation alone or by resort to literal interpretation of an isolated provision but by a consideration of the instrument as a whole, circumstances existing when the agreement was made, the objection sought to be attained and other circumstances, if any, which tend to clarify the real purpose and intent of the parties.

4. A contract for services containing mutually binding obligations is not rendered invalid by reason of additional provisions which permit one of the parties possessed of special knowledge to exercise her judgment and discretion concerning such particular matters.

5. The law implies that contractual provisions requiring the exercise of judgment or discretion will be honestly exercised and faithfully performed.

6. The acceptance of an exclusive management and agency constitutes an assumption of such duties in good faith.

7. The old rule as to limitations of time and space with respect to contracts involving restraint of trade has given way to the modern doctrine of reasonableness and the real test is never whether there is any restraint but always whether the restraint is reasonable under the facts and circumstances of the particular case.

8. Absence of inceptive mutuality constitutes no defense to the enforcement of an executed contract.

9. A petition for an accounting and to recover compensation for services rendered under a written contract for the training of a young singer, examined and held: (a) In order to determine plaintiff's right to compensation for past services it need not be determined whether she is required to perform further services during the unexpired period of the contract; (b) the contract is not invalid for lack of mutuality; and (c) the contract is not inimical to the public welfare.

John F Eberhardt, of Wichita (Robert C. Foulston, George Siefkin George B. Powers, Samuel E. Bartlett, Andrew F. Schoeppel Carl T. Smith, Stuart R. Carter and Thomas E. Woods, all of Wichita, on the brief), for appellant.

Austin M. Cowan, of Wichita (W. A. Kahrs, Robert H. Nelson and Loyd F. Cooper, all of Wichita, on the brief), for appellee.

WEDELL Justice.

This was a suit for an accounting and for specific performance of a written contract. Plaintiff appeals from an order sustaining a general demurrer to her amended petition.

While there were three parties to the contract, the plaintiff, the defendant and her mother, the mother is not a party to the action. We shall continue to refer to the parties as plaintiff and defendant.

The original petition, in substance, alleged:

Plaintiff and defendant are residents of Sedgwick county; on October 3, 1941, they entered into a written contract marked exhibit 'A'; defendant was then a minor and executed the contract personally and by and through her mother and legal guardian; thereafter on January 3, 1945, plaintiff and defendant entered into a second written agreement marked exhibit 'B'; at that time defendant was and is now of age; exhibit 'B' ratified the original agreement; under the contract defendant is obligated to pay to plaintiff the sum of money specified in the contract and defendant agreed to direct the payments of such sums to be made to the plaintiff; defendant had failed and refused to pay the money due under the contract; demand has been made upon defendant for an accounting and a disclosure of contracts she now has, or claims to have, with one Phil Spitalny on the radio program known as 'The Hour of Charm'; defendant has failed and refused to disclose to plaintiff the contracts under which she has been employed and on more than one occasion has refused to comply with a demand for an accounting; under the circumstances plaintiff's right to recover in an action at law is inadequate; plaintiff is entitled to an accounting of all moneys received by defendant and defendant should be required to disclose the terms of the contract under which she is working and the amount she has received thereunder; plaintiff is entitled to the specific performance of the attached contracts.

The amendment to the original petition was: 'That Plaintiff has performed each, every, and all of the obligations, requirements, and duties imposed upon her by the contracts attached to and incorporated in her said petition as Exhibits 'A' and 'B' thereto. More specifically, plaintiff alleges that she did in fact coach, teach, instruct, and train the said defendant for development of her singing talents and in regard to such matters as poise, personality, and demeanor; that she obtained and paid for instructors and tutors for said defendant, and exerted her best efforts to develop the talents of said defendant and to qualify said defendant for a musical career; and that she, through her contacts, was instrumental in obtaining for defendant her engagement with Phil Spitalny. That, in addition to the expenditure of her time and effort this plaintiff expended approximately $5,000.00 on behalf of defendant in obtaining instructors and tutors for said defendant and in furthering her musical education and career, all in accordance with and pursuant to said contracts, Exhibits 'A' and 'B' to plaintiff's said petition.'

The contracts, exhibits 'A' and 'B', are appended to and made a part of this opinion.

The trial court sustained the demurrer to the amended petition on the ground the contract was '* * * so indefinite and uncertain that nobody was bound.' From the memorandum opinion of the trial court it appears the court also may have concluded that by reason of such defect the contract lacked mutuality.

We shall turn at once to the basic ruling that the contract was too indefinite. This finding was based solely on paragraph 1 of exhibit 'A' and involved the pronoun 'she' and its proper antecedent. Touching that subject the court said:

'Paragraph 1 of the contract sued on may be interpreted in three ways:

'1. 'The party of the third part' hereby agrees to engage and hire instructors and teachers for the musical education of the second party as she (the said third party) in her judgment and discretion may deem necessary and/or advisable, and for such time and period as she (the said third party) may decide upon.

'2. It may read thus, to-wit: 'Party of the third part' hereby agrees to engage and hire instructors and teachers for the musical education of the second party as she, to-wit: 'The second party' in her judgment and discretion may deem necessary and/or advisable, and for such time and period as she to-wit: (The second party) may decide upon.

'3. The party of the third part hereby agrees to engage and hire instructors and teachers for the musical education of the second party as she, to-wit: (the first party) in her judgment and discretion may deem necessary and/or advisable, and for such time and period as she, to-wit (the said first party) may decide upon.'

It is, therefore, clear the court held the contract invalid solely on the ground it could not be determined from paragraph 1 whether plaintiff, defendant or defendant's mother was vested with the right to select additional tutors and instructors for defendant. Defendant's mother, the first party, is not mentioned in that paragraph. We, therefore, cannot follow the trial court's third possible interpretation.

If only that single paragraph of the contract could be considered we would find little difficulty in concluding the pronoun 'she' referred to the third party, the plaintiff, as the person who agreed to engage and hire such instructors and tutors '* * * as she * * * in her judgment and discretion may deem necessary and/or advisable, and for such time and period as she * * * may decide upon.' It is not reasonable to assume the minor sudent was intended to have the right to determine such an important matter when plaintiff was required to assume the duty and responsibility of properly training this minor. Reasonable rather than unreasonable interpretations are favored by the law. Southwest Kansas Oil & Gas Co. v. Argus Pipe Line Co., 141 Kan. 287, 292, 39 P.2d 906; Brooks v. Mull, 147 Kan. 740, 747, 78 P.2d 879. But we need not resort to assumption in this case. The meaning of a contract should never be determined by a critical analysis of a single or isolated provision but should always be ascertained by a consideration of all pertinent provisions. In Federal Land Bank v. Girtch, 151 Kan. 528, 99 P.2d 768, the general and long established rule was followed and stated thus: 'Where ambiguity or uncertainty is involved, the intention is not ascertained from punctuation alone or by resort to literal interpretation, but by considering all language employed, circumstances existing when the agreement was made, the object sought to be attained, and other circumstances, if any, which tend to clarity the real intention of the parties.' (Syl. par. 2.) See, also, Skelly Oil Co. v. Cities Service Oil Co., 160 Kan. 226, 231, 160 P.2d 246.

Applying the rule which requires courts to ascertain the intent of parties from the 'four corners' of the instrument we are obliged to conclude any ambiguity which may exist in paragraph...