Herron v. Chappeil

• Decision Date: 11 April 1953
• Docket Number: No. 38904,38904
• Citation: 174 Kan. 350,255 P.2d 632
• Parties: HERRON et al. v. CHAPPEIL.
• Court: Kansas Supreme Court

Page 632

255 P.2d 632

174 Kan. 350

HERRON et al. v. CHAPPEIL.

No. 38904.

Supreme Court of Kansas.

April 11, 1953.

Syllabus by the Court.

1. The fact a ruling of which a party complains is made more than two months before a timely appeal is perfected from an order overruling a motion for new trial does not preclude appellate review of such former ruling. Laws 1951, ch. 350, § 1.

2. The right to review mentioned in the preceding paragraph includes all rulings specified in the notice of appeal.

3. The real character and legal effect of an instrument is not determined by a characterization or label attached thereto but by its terms, provisions and intent.

4. In testing the sufficiency of evidence as against a demurrer courts do not compare or weigh evidence but disregard all unfavorable evidence, consider only evidence favorable to the party adducing it and accept it as true.

5. The record in an action to enjoin a defendant from entering upon and interfering with farming operations of plaintiffs and in which the defendant resisted such relief and cross petitioned for an accounting and the appointment of a receiver examined, considered and held: (a) The terms of the agreement concerning a joint adventure were partly oral and partly written; (b) defendant's demurrer to plaintiffs' evidence was properly overruled; (c) the finding of the court made on conflicting evidence that the allegations contained in plaintiffs' pleadings are true and that contrary allegations in defendant's pleadings are untrue will not be disturbed on appeal; (d) other specific findings of the trial court are supported by evidence; and (e) the findings made support the judgment rendered.

James A. Williams, of Dodge City (C. W. Hughes and Byron G. Larson, both of Dodge City, on the briefs), for the appellant.

Harry A. Waite, of Dodge City (E. C. Minner, of Dodge City, on the briefs), for the appellees.

WEDELL, Justice.

Plaintiffs filed a suit for an injunction. Defendant resisted that relief and cross petitioned for an accounting and the appointment of a receiver. Plaintiffs prevailed in all respects and defendant has appealed from the order overruling his motion for a new trial.

Appellees admit the appeal was timely perfected from the order overruling the motion for a new trial but argue the judgment cannot be challenged now for the reason no appeal was taken from the judgment. The contention is not good. Laws 1951, chapter 350, section 1, G.S. 1951 Supp. 60-3314a, provides:

'When an appeal or cross-appeal has been timely perfected the fact that some ruling of which the appealing or cross-appealing party complains was made more than two months before he perfected his appeal shall not prevent a review of the ruling.'

See, also, State Highway Commission v. Safeway Stores, 170 Kan. 545, 547, 228 P.2d 208, and Holmes v. Kalbach, 173 Kan. 736, 252 P.2d 603.

Appellees, Ross D. Herron and R. Wayne Herron, are owners of a fractional remainder interest in certain lands involved. They farmed seven quarter sections under a lease from their mother and an aunt. The questions involved pertain to the rights of the parties to the possession control and operation of three of those quarter sections, commonly known as the Herron farm and to their interest in the 1951 crop thereon.

The alleged rights of the parties were based on an agreement made in the early part of 1951, the agreement being only partly in writing. The written portion was in the form of a memorandum which pertained to certain matters involved. It did not constitute a clear or an enforceable contract without the terms agreed to orally.

It is unnecessary to copy the voluminous pleadings consisting of appellees' amended petition, appellant's answer and cross petition and appellees' reply. Nor need we separate the allegations of appellees' pleadings. However, in view of the trial court's findings we shall analyze the pleadings. Appellees' pleadings, in substance, alleged:

On or about March 27, 1951, the parties entered into a joint adventure agreement solely for the purpose of feeding cattle and not for farming purposes; appellees were to raise ensilage for 1951 fall and winter feeding of approximately 600 head of cattle which appellant agreed to provide; appellant also agreed to raise approximately $40,000 of working capital for the cattle feeding venture; the profits of the venture were to arise out of the gain upon sale of the cattle; before computing profits appellees were to be reimbursed for certain items of expense including wear and tear on their machinery in producing the ensilage and for their labor; there was no agreement appellant should be a joint adventurer in the cultivation of the land, the operation of the farm or in the raising of crops; appellant repudiated his part of the agreement; he provided neither the cattle nor the working capital; he wrongfully came onto the farm and undertook to direct farming operations; appellees insisted that he refrain from such action and finally served a written notice on him to remain off the promises; appellant thereafter wantonly trespassed on the land and planted Ellis Sorgo; appellant filed an action in the district court to obtain a declaratory judgment; the court concluded the agreement between the parties did not constitute a leasing contract on the land, appellant had no estate, title or interest in the real estate and the parties were joint adventurers in the cattle operations.

Appellees further, in substance, alleged:

Due to appellant's breach of his obligations the joint adventure failed to commence; the venture had no working capital, cattle or any other assets or property for which an accounting to appellant or the appointment of a receiver were necessary.

Appellant's answer admitted the allegations in appellees' amended petition that the parties had entered into a joint adventure agreement for feeding cattle; appellees served written notice on him to remain off the Herron farm; appellant later filed an action against them for a declaratory judgment in which it was determined appellant had no interest in the lands involved or in the crops, as a tenant.

His cross petition, insofar as now material, further, in substance, alleged:

The parties entered into a joint adventure or partnership contract, partly oral and partly written, for the farming and operation of the lands and for the running of cattle thereon and upon approximately 800 acres of lands owned by others and leased by appellant.

The cross petition further stated:

'That the oral portion of said contract provided that the same would run for a term of approximately one year; that maize and ensilage would be planted on said land of plaintiffs to be used in connection with the cattle; that they would be paid a sum of money equal to the value of one-third of a crop of wheat had wheat been grown on said land instead of ensilage or maize, and in addition would be paid a certain bonus and royalty by the partnership under certain conditions. That defendant was to be the manager and supervisor of all of the operations of the partnership and would use their machinery, and would be paid therefor; that several hundred head of cattle would be procured and wintered and fed on said lands, and that in the fall of 1951 plaintiffs would furnish 400 to 500 acres of wheat pasture to the partnership on other lands owned and leased by them. That defendant was to receive all net profits and income remaining after the payment of said cash rental, bonus, royalty and costs and expenses of procuring and feeding and handling said cattle, including the labor of plaintiffs and the costs of said wheat pasture.

'That a true and correct copy of the written portion of said contract is marked Exhibit A, attached hereto and made a part hereof.'

Exhibit 'A' reads:

'Rental Rate to Herrons for Farm Land:

'I. Landlord's share 1/3 cash value of the crop at the elevator whenever marketed within the crop year. The yield to be determined by average yield of all the wheat crop on the remainder of the Herron farm.

'II. Rental of their machinery as suggested by the A.S.A.E. committee on farm machinery rentals, plus 5% 'III. Labor done by Ross and Wayne to be determined the top rate in the community, plus 5%.

'IV. Royalty to Ross and Wayne Herron 20% of net from all cattle on both Chappell's and Herron's farm if Herrons provide 480 A.'

The cross petition also alleged:

'Defendant [appellant] further alleges that pursuant to said contract of partnership worked and prepared for planting in the Spring of 1951 approximately 347 acres of ground. That approximately 245 acres were planted to maize, which maize made a very good stand and about 230 acres matured as hereinafter alleged. That approximately 100 acres of...