Klema v. Soukup

• Decision Date: 06 March 1954
• Docket Number: No. 39190,39190
• Parties: KLEMA v. SOUKUP et al.
• Court: Kansas Supreme Court

Page 501

267 P.2d 501

175 Kan. 775

KLEMA v. SOUKUP et al.

No. 39190.

Supreme Court of Kansas.

March 6, 1954.

Syllabus by the Court.

1. The interpretation of a written contract, free from ambiguity, is a judicial function and does not require oral testimony to determine its meaning. Ambiguity in a written instrument does not appear until application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.

2. A contract for the sale of a stock of groceries and of furniture and fixtures is examined, and held, to be free from ambiguity.

3. Plaintiff's evidence on trial of his action to recover moneys alleged to be due him under the above mentioned contract is examined, and held, to make a prima facie case for recovery.

4. The record further examined, and held, that the trial court erred in sustaining defendants' demurrer to plaintiff's evidence.

Oscar Ostrum, Russell, argued the cause, and Dean G. Ostrum, Russell, and George D. Miner and Paul L. Aylward, Ellsworth, were with him on the brief for appellant.

V. E. Danner, Ellsworth, argued the cause, and John V. O'Donnell, Ellsworth, was with him on the brief for appellees.

THIELE, Justice.

This was an action by a buyer to recover from the sellers an amount alleged to be due under a written contract for the purchase and sale of a grocery stock and fixtures.

In a preliminary way it may be stated that under date of October 27, 1949, a written contract was entered into by Gerald W. Klema as buyer and Joseph D. Soukup and Zdenek J. Soukup, partners doing business as South Side Grocery, sellers, the pertinent parts of which were that the sellers sold and the buyers bought all of the stock, wares and merchandise located in the grocery with all the furniture and fixtures therein; that the store should be closed temporarily and inventory taken and delivered to the buyer at retail price less twenty per cent, and other details with respect thereto not in issue. The fifth paragraph of the agreement provided:

'5. The consideration for this agreement is the aforesaid inventory at retail less twenty per cent for the stock of goods, wares and merchandise plus the stock of furniture and fixtures valued by the sellers at $3,500.00, payable in the manner following, to-wit: ($5,000.00) Five Thousand and no/100 dollars, to be paid by buyer to sellers on the signing of this agreement, to be placed in an escrow account as hereinafter set out.

'Buyer after inventory as aforesaid, shall have possession of the furniture and fixtures; and the same shall be sold within six months from the date of this agreement for the best price obtainable, buyer and seller using their best efforts to obtain that end. All furniture and fixtures remaining unsold at the end of the six month period shall become the property of the buyer without any further payment or consideration. If the stock aforesaid and the furniture and fixtures do not in all, inventory and bring $5500.00, but do amount to more than $5,000.00, then and in that event, buyer will pay sellers the difference between said $5,000.00, and the actual amount received as the full consideration for this agreement. In the event, however, said inventory of stock and said sale price of furniture and fixtures is less than $5,000.00, then sellers will pay or cause to be paid to the buyer the difference between said inventory and sale price and $5,000.00. However, if said inventory and sale price amount to more than $5500.00, then and in that event buyer will pay sellers $500.00 additional above said price of $5500.00 as full consideration and final payment under this agreement.'

The sixth paragraph provided that the buyer should deposit in a named bank, subject only to the joint check of the buyer and sellers for the purpose of paying debts of the sellers due against the business, the sum of $5,000 or to be returned to the buyer under conditions no longer of importance. By another paragraph provision was made for time in which the sellers could comply with the bulk sales law of this state, a provision of no present importance.

On August 14, 1950, Klema commenced an action against Joseph D. Soukup and Zdenek J. Soukup alleging the making of the contract; his version of its terms; that he had paid the sum of $5,000 into the bank and that $4,978.68 had been paid out for debts; that the goods, wares and merchandise inventoried amounted to $2,411.96, and the fixtures actually sold amounted to $217.50 making a total of $2,629.46 in value received by plaintiff; that a certain account of $231 for goods furnished to one McFarland was due and owing from defendants, and that there was due plaintiff from defendants the sum of $2,580.22, for which he prayed. As the result of a motion to make definite and certain on November 8, 1950, plaintiff filed an amended petition alleging two causes of action. The first cause dealt with the making of the contract and with some amplifications reiterated the allegations of the original petition, except as to the $231 McFarland account, and prayed for recovery of $2,349.22. The second cause dealt with the McFarland account and sought recovery of $231. Defendants' demurrer to this amended petition was sustained, the plaintiff being allowed time to file an amended petition. On March 19, 1951, plaintiff filed his second amended petition containing three causes of action. The first cause of action pleaded the contract and what occurred subsequent to its making, and additional facts tending to show an operative interpretation by the parties and recovery of $2,349.22 was sought; the second cause of action may be briefly referred as attempting at least to state grounds for reformation of the contract and that under the contract as reformed plaintiff recover from defendants the sum of $2,349.22. The third cause of action set up the McFarland account and sought recovery of $231. Defendants attacked this petition by motion to strike plaintiff's first cause of action, on the ground a demurrer thereto had been sustained, which was denied; and by a motion to make definite and certain, which was allowed. Thereafter on November 26, 1951, plaintiff filed his third amended petition which complied with the order to make definite and certain. On December 4, 1951, the defendants filed an answer admitting execution of the contract of October 27, 1949, making other admissions and denials as to the first cause of action...