Lawson v. Durant, 47105
| Decision Date | 26 January 1974 |
| Docket Number | No. 47105,47105 |
| Citation | 518 P.2d 549,213 Kan. 772 |
| Parties | Chester Aai LAWSON, and Carrie L. Lawson, Appellees, v. Earl Eugene DURANT, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
A provision in an installment sales contract for the sale of real property liquidating certain items of damage in the event the purchaser defaults in the payment of installments due, will not prevent the recovery of actual damages for waste to the premises set forth in another provision of the contract to which the liquidated damage provision does not apply, unless the contract expressly provides that damages other than those enumerated shall not be recovered.
Ray Hodge, of Beaty, Hodge & Wood, of Wichita, argued the cause and was on the brief for appellant.
Kenneth F. Beck, Wichita, argued the cause and was on the brief for appellees.
This is an action for damages to real property caused by waste. The case was tried to a jury which returned a verdict for the plaintiffs in the sum of $1,000 upon which the trial court entered judgment. The defendant has duly perfected an appeal.
The underlying issue is whether the action for damages based upon waste to the real property is outside the terms of the written installment sales contract for the purchase of the real property, where the contract provides for liquidated damages in case of default in the payment of installments.
Chester Aai Lawson and Carrie L. Lawson (plaintiffs-appellees) entered into a written installment sales contract on September 17, 1969, with Earl Eugene Durant (defendant-appellant), whereby the appellees agreed to sell the appellant real estate located at 2359 Payne in Wichita, Kansas. The total purchase price was $8,750 with interest at the rate of eight per cent per annum. The buyer agreed to pay the sellers on or before the 17th day of September 1969, the sum of $90, and a like sum on or before the 17th day of each and every month thereafter until the full purchase price was paid. The monthly sum to be paid included the taxes and insurance.
The provisions of the contract material herein read as follows:
'Said 'Buyer' agrees further not to commit waste or permit the commission of waste on said premises, keep said premises in good repair, not to encumber said premises with improvements without the written consent of the 'Sellers', and not to use or permit the premises to be used for any illegal purpose, not to sell or transfer this agreement without the written consent of 'Sellers', and to permit the 'Sellers' to enter upon said premises at any reasonable time for the purpose of inspection of said premises.
'Said 'Sellers' and 'Buyer' further agree that time is the essence of this agreement and in case default is made and continued for a period of two calendar months in the payment of the installments herein provided for, and the performance of any other condition herein to be performed by 'Buyer' the 'Sellers' may upon giving to 'Buyer' ten days written notice, declare the entire purchase price remaining unpaid to be due and payable and may rescend this agreement to sell and convey said premises, and that all sums paid on this agreement by 'Buyer' shall be retained by the 'Sellers' as reasonable liquidated damages for breech of contract, and in the event of the cancellation of this contract by the 'Sellers' as herein provided, the 'Buyer' agrees to peaceably surrender possession of said premises to 'Sellers."
The contract was duly executed and notarized on the 24th day of September 1969.
On or about the 18th day of October 1971, the appellant left the premises, and it is stipulated the appellees took possession of the trial property and have retained all monies paid by the appellant, being the sum of $2,630. Possession of the real property and retention of the monies paid by the appellant to the appellees were made pursuant to the written agreement.
The appellees in their action alleged the appellant committed waste on the premises in the amount of $4,730 for which they brought suit.
With the issues framed the case was tried to the jury. The appellant at all stages of the proceeding made timely objection on the ground that the appellees' cause of action for waste was completely outside the terms of the written installment sales contract. This is the issue the appellant asserts on appeal.
Various factual issues framed by the pleadings were resolved by the trial, and the evidence taken at the trial is not set forth in the record. It is clear from the points asserted on appeal that only one question of law is presented.
The appellant contends the contract provides that in the event of the appellant's breach, the only remedies available to appellees are: (1) To declare the entire balance due and payable and sue the appellant on the deficiency, with appellant retaining the property; or (2) to repossess the property and keep the monies previously paid...
To continue reading
Request your trial
-
VanKirk v. Green Const. Co., 22791
...expressly provides that damages other than those enumerated shall not be recovered." (Citations omitted). See also Lawson v. Durant, 213 Kan. 772, 518 P.2d 549 (1974); Spinella v. B Neva Inc., 94 Nev. 373, 580 P.2d 945 (1978). See generally 25 C.J.S. Damages § 114 Green also argues as a def......
-
Town of New Milford v. Standard Demolition Servs., Inc.
...damages clause unless contract expressly provides that damages other than those enumerated shall not be recovered); Lawson v. Durant , 213 Kan. 772, 775, 518 P.2d 549 (1974) (same); Meyer v. Hansen , 373 N.W.2d 392, 395 (N.D. 1985) (same); Visa, Inc . v. Sally Beauty Holdings, Inc ., Docket......
-
Town of New Milford v. Standard Demolition Servs.
... ... those enumerated shall not be recovered); Lawson v ... Durant, 213 Kan. 772, 775, 518 P.2d 549 (1974) ... (same); Meyer v. Hansen, ... ...
-
A. Miner Contracting, Inc. v. Toho-Tolani Cnty. Improvement Dist.
...are separate and distinct from liquidated damages intended to compensate for injury resulting from delay. See, e.g., Lawson v. Durant, 213 Kan. 772, 518 P.2d 549, 551 (1974) (holding liquidated damages provision in contract did not prevent recovery of actual damages for other items to which......