Holmes v. Kalbach

• Decision Date: 24 January 1953
• Docket Number: No. 38713,38713
• Citation: 252 P.2d 603,173 Kan. 736
• Parties: HOLMES v. KALBACH.
• Court: Kansas Supreme Court

Page 603

252 P.2d 603

173 Kan. 736

HOLMES v. KALBACH.

No. 38713.

Supreme Court of Kansas.

Jan. 24, 1953.

Syllabus by the Court.

1. Under the provisions of Laws of 1951, Chapter 350, Section 1, now G.S.1951, Supp. 60-3314a, 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 does not prevent a review of the ruling.

2. Under and by virtue of the provisions of the section of the statute referred to in the first paragraph of this syllabus an aggrieved party who perfects a timely appeal from an order overruling a motion for new trial, based upon grounds recognized by the statute, G.S.1949, 60-3001, may have a review of prior rulings of which he complains even though those rulings were made more than two months before the perfection of such appeal provided that in his notice of appeal he gives notice he is appealing from such rulings.

3. The established rule in this jurisdiction is that where a person makes a promise to another for the benefit of a third person such third person may maintain an action thereon even though he is a stranger to the contract and the consideration therefor.

4. The record in an action by a real estate agent to recover on a real estate contract between a vendor and vendee, wherein the vendor has specifically agreed 'to pay Bess Holmes (the plaintiff) commission of $400', examined, and held, (1) the contract was made in part for the benefit of plaintiff and was one on which she could maintain an action and (2) the trial court did not err in overruling a demurrer to the petition based upon the premise that pleading failed to state a cause of action.

D. B. Lang and James W. Wallace, both of Scott City, for appellant.

Herschel Washington, of Leoti, for appellee.

PARKER, Justice.

This was an action on a contract. Plaintiff prevailed and the defendant appeals.

A proper understanding of the contentions advanced by the parties with respect to the issues involved on appellate review requires a somewhat detailed description of the pleadings and the proceedings in the court below.

Plaintiff commenced the action by filing a petition which, omitting its formal allegations and prayer, reads:

'That on the 10th day of April, 1946, defendant entered into a certain written contract for the sale of real estate by and under the terms of which contract, defendant agreed to pay plaintiff a commission of $400.00 for her services as agent in connection with the sale of certain real estate, a copy of which contract is attached hereto, made a part hereof and marked Exhibit 'A'.

'That plaintiff secured the buyer for said property described in said contract and the contract was complied with by the purchaser and the defendant was paid the amount recited as consideration for the sale of the property and has conveyed the same to the purchaser; plaintiff has performed all of her duties as such agent and is entitled to the commission which defendant agreed to pay.'

Nothing would be gained by setting forth the contents of the instrument, described as Exhibit 'A', which was attached to and made a part of the petition. For our purposes it suffices to say that when examined it must be construed as a real estate contract in which the defendant, Willard Kalbach, party of the first part, contracted to sell one J. H. Mitchell, as party of the second part, certain described real estate in Wichita County for a stated consideration and, in the last paragraph thereof, expressly agreed to pay the plaintiff, Bess Holmes, who was neither named nor identified as a party to such agreement, a commission of $400 for making such sale.

Defendant demurred to the foregoing petition upon grounds (1) it disclosed upon its face the court had no jurisdiction of the subject matter of the action and (2) it failed to state facts sufficient to constitute a cause of action against him and in favor of plaintiff. This demurrer was overruled. Thereafter defendant filed an answer and cross-petition. In the answer he repeated the grounds set forth in his demurrer, denied the heretofore quoted allegations of the petition, alleged that prior to the date of the contract sued on plaintiff had orally agreed to procure and arrange the sale to him of other real estate (describing it) in lieu of that listed and conveyed under the terms of such contract, and prayed that plaintiff take nothing by virtue of the allegations set forth in her petition. In his cross-petition defendant included the allegations of his answer by reference and asked affirmative relief in the form of a money judgment against plaintiff for failure to procure him a conveyance of the real estate described in his answer.

Plaintiff's reply to the answer was a general denial. Her answer to the cross-petition contained a like denial and, among other things, a claim to the effect that pleading failed to state facts sufficient to constitute a cause of action.

With issues joined, as heretofore indicated, the cause came on for trial by the court. We are told, although neither the grounds on which it was based nor the reasons assigned for overruling it are set forth in the record, that defendant's demurrer to plaintiff's evidence was overruled. However, the record does disclose that the trial of the cause proceeded and judgment was ultimately rendered on the contract sued on in favor of plaintiff for the full amount claimed in her petition. Even though, as will presently be disclosed, the circumstances are such they have little bearing on the all decisive appellate issue involved it is interesting to note that prior to the rendition of its judgment the trial court made findings of fact which read as follows:

'1. That the parties to the above cause filed required pleadings to bring the cause to issue, appeared in court in person and by attorney and waived trial by jury.

'2. That plaintiff's petition herein was filed on June 22, 1950, and defendant was personally served with summons on June 28, 1950.

'3. That the defendant and one Homer Mitchell entered into a certain contract in writing by and under the terms of which the Defendant agreed to sell and Homer Mitchell agreed to buy certain real estate located in Wichita County, Kansas; that the following phrase was written in said contract 'first party is to pay Bess Holmes commission of $400.'

'4. That said written contract between the defendant and Homer Mitchell was dated and signed by the parties on April 10, 1946, and was completed in accordance with its terms; the recited consideration being paid by Mitchell and the deed to the property being executed and delivered by the defendant.

'5. That the defendant had not paid plaintiff any part of commission of $400.

'6. That the plaintiff drew the said contract between the defendant and Homer Mitchell at the direction of both parties thereto.

'7. That the allegations in defendant's cross-petition relating to an alleged agreement of the plaintiff to arrange for the purchase of certain real estate, by the defendant suggested, were not substantiated by the testimony.'

After rendition of the judgment defendant's motion for new trial, which it can be said was based upon practically all of the statutory grounds, G.S.1949, 60-3001, was filed and overruled. Here again, because there is nothing in the record to indicate what action was taken, we are told and hence, since it is not denied, must assume the only point argued and relied on by defendant when such motion was presented to the trial court was the same as that argued and relied on in support of the demurrers to the petition and to the evidence, namely, that the statute of limitations had run against the plaintiff for the reason she had no right to maintain an action on the written instrument on which she relied to sustain her cause of action.

Following the overruling of his motion for new trial, and on November 12, 1951, defendant gave notice of appeal, filed with the Clerk of the District Court on November 14, 1951, in which he specified that he appealed from all orders and judgment made in the action, and in particular the following:

'(a) Judgment overruling defendant's demurrer to the plaintiff's petition, entered September 18, 1950.

'(b) Judgment overruling defendant's demurrer to evidence entered June 1, 1951.

'(c) Judgment against the defendant in the sum of $400.00 entered September 5, 1951.

'(d) Judgment overruling defendant's motion for new trial entered September 17, 1951.'

The first portion of appellee's brief challenges appellant's right to be heard. Therefore questions raised by her with respect to that subject must be disposed of before any consideration is given to the merits of the cause.

Appellee's first contention, which we must concede is factually correct, is that appellant failed to file his abstract of record within forty days from the date of the filing of his notice of appeal as required by our rules. The trouble with this claim is that appellee did not make this challenge until after appellant had filed his abstract. Under such conditions, even though we do not approve of a violation of our rules, we are not disposed to and do not deprive litigants of the right to be heard on appeal. See French v. French, 171 Kan. 76, 83, 229 P.2d 1014.

From the portions of the notice of appeal, heretofore quoted, it becomes obvious, in fact we have quoted them at length for the purpose of making the point clear, that the first three judgments from which appellant is attempting to appeal were rendered more than two months prior to the date on which any appeal was perfected in this case and hence are not subject to review, see G.S.1949, 60-3309, in this court unless it can be held they reach here by reason of the fact the appeal from the order and judgment overruling appellant's motion for new trial was perfected within the time prescribed...