Leslie v. Sherman
| Decision Date | 12 June 1943 |
| Docket Number | 35905. |
| Citation | 157 Kan. 157,139 P.2d 133 |
| Parties | LESLIE et ux. v. SHERMAN et al. |
| Court | Kansas Supreme Court |
Rehearing Denied July 7, 1943.
Syllabus by the Court.
Evidence failed to establish that lessors were induced to sign original rock quarrying lease by lessee's fraudulent representations as to royalty value of rock.
Lessors were not obliged to sue for cancellation of rock quarrying lease even though they might have an absolute right to do so but could "waive" such right, approve the lease and permit lessee, or subcontractor of lessee, to proceed with operation of leased premises.
Courts of equity will cancel a lease where grounds for cancellation exist and parties entitled thereto promptly invoke aid of the court for that purpose.
Where whatever right lessors might have had to cancel original rock quarrying lease had been waived, the lease and sublease made by lessee had been approved by lessors, and sublessee, in reliance upon such approval, had started large-scale operation, cancellation of original lease would not be decreed.
Persons of sound mind who, after discussion, sign a short and unambiguous instrument after it has been read to them and copies thereof placed in their hands for examination, cannot claim that they did not have knowledge of contents of instrument.
Where lessors signed an instrument approving original rock quarrying lease and sublease after instrument had been read to them and placed in their hands for examination, subsequent instrument was an approval of sublease insofar as sublease did not exceed powers granted under original lease notwithstanding that lessors had never seen sublease.
Where there was adequate consideration for original rock quarrying lease, no consideration to lessors was necessary for approval of a subsequent sublease.
Evidence supported finding that original rock quarrying lease and sublease were valid as supported by adequate consideration.
The only limitation on lessee's common-law right to sublet premises is that premises cannot be sublet to be used in manner inconsistent with terms of original lease or injurious to the premises.
Fact that sublease recited that lessee of rock quarrying lease was to receive five cents per cubic yard for rock from sublessee did not result in use of leased premises in a manner inconsistent with original lease or in injury to premises, so as to vitiate sublease.
A finding generally for one of defendants on question of fraudulent representation was not inconsistent with specific finding that such defendant did not advise plaintiffs that he was receiving five cents per cubic yard for rock under sublease, in absence of showing that such defendant was required to make known to plaintiffs his profit under the sublease. Gen.St.1935, 60-2921.
Where one cent per cubic yard for rock as provided in original rock quarrying lease constituted a fair royalty to lessors at time lease was executed, lessee's failure to advise lessors that he was receiving five cents per cubic yard for rock under sublease executed 15 years thereafter did not constitute such "fraud" as to vitiate sublease.
1. Lessors are not obliged to sue for the cancellation of a lease even though they may have an absolute right to do so but may waive such right, approve the lease and permit the lessee, or a subcontractor of the lessee, to proceed with operation of the premises.
2. Courts of equity will cancel a lease where grounds for cancellation exist and the parties entitled thereto promptly invoke the aid of a court for that purpose, but courts will not decree cancellation where the right, or rights, to cancel the lease have been waived, the lease and a sublease made by the lessee have been approved by the lessors and the sublessee, in reliance upon such approval, has started large-scale operations. SC3. The only limitation of the common-law right of a lessee to sublet the premises is that they cannot be sublet to be used in a manner inconsistent with the terms of the original lease, or injurious to the premises.
4. It is of no avail to persons of sound mind and understanding who, after discussion, sign a short and unambiguous instrument after it has been read to them and copies thereof have been placed in their hands for examination, to say they did not have knowledge of its contents.
5. The record in an action to cancel and set aside an original rock quarrying lease and a sublease and for incidental relief examined, and held: (1) The findings and conclusions of fact exculpating the lessee of fraud have substantial evidentiary support (2) the instrument approving the original lease and a sublease were supported by adequate consideration (3) no reversible error was committed in (a) overruling a motion to set aside other findings of fact or (b) in overruling a motion for judgment on findings and conclusions of fact.
Appeal from District Court, Douglas County; Hugh Means, Judge.
Action by Henry Leslie and Nettie Leslie, his wife, against Paul Sherman and others to cancel certain instruments of record to evict defendant Paul Sherman, and defendants Elmer Kaser and Don Kaser, partners doing business as the Kaser Construction Company, from certain lands previously leased by plaintiffs to defendant Paul Sherman, to enjoin defendants from removing rock and dirt therefrom, and to require defendants to account to plaintiffs for the dirt and rock previously removed. From a judgment for defendants, the plaintiffs appeal.
Lester M. Goodell, of Topeka (J. B. Wilson, of Lawrence, and John L. Hunt, Margaret McGurnaghan, John H. Hunt, and George M. Brewster, all of Topeka, on the brief), for appellants.
Edward Rooney, of Topeka (Jacob A. Dickinson and Edward Rooney, Jr., both of Topeka, and George K. Melvin, R. E. Melvin, and Maxine B. Virtue, all of Lawrence, on the brief), for appellees.
This was an action by Henry Leslie and Nettie Leslie, his wife, to cancel certain instruments of record; to evict the defendant, Paul Sherman, and defendants Elmer Kaser and Don Kaser, partners doing business as the Kaser Construction Company, from certain lands previously leased by plaintiffs to the defendant, Paul Sherman; to enjoin defendants from removing rock and dirt therefrom; to require defendants to account to plaintiffs for the dirt and rock previously removed and for judgment against them of not less than five cents per cubic yard for the dirt and rock removed. Judgment was for defendants and plaintiffs appeal.
The interest of the defendant, J. W. Kreider, in the lawsuit will be set forth later. It may, however, now be stated no issue relative to his rights is presented for determination. While appellants say the controversy is primarily between them and the appellee, Sherman, the judgment if reversed would result in a complete cancellation of all future rights of appellee, the Kaser Construction Company.
By stipulation of the parties the Kaser Construction Company is continuing its operation of quarrying and removing rock during the pendency of the litigation and is paying all royalties due under its subcontract with the appellee, Sherman, to the clerk of the district court to be distributed pursuant to final judgment.
Appellants filed the instant action in June, 1942. The relief sought was based upon the theory a lease to quarry stone executed by the appellants to the appellee, Sherman, in 1929, was void for several reasons. It was, in part, alleged the lease was obtained by means of false and fraudulent representations made by Sherman and relied upon by appellants. The alleged representations, in substance, were:
Sherman had the necessary machinery to quarry stone for commercial purposes; the Atchison, Topeka and Santa Fe Railway Company had a track running across the premises and Sherman had a contract with that company to take the rock when quarried; plaintiffs were entirely ignorant of and had no knowledge of the royalty value of rock to a landowner, but Sherman claimed to have such knowledge and represented to plaintiffs such value was one cent per cubic yard; each and all of these representations were known by Sherman to be false and untrue; plaintiffs had implicit confidence in Sherman and continued to believe all these statements until June 10, 1942; plaintiffs have waited patiently for Sherman to perform the purported contract; the fair compensation for rock or stone to be removed from the premises is not less than five cents per cubic yard.
The petition, in substance, also alleged:
The 1929 lease had automatically expired by its own terms; the lease was void at its inception in that the terms were not sufficiently definite and certain to constitute a binding contract; if the lease was ever valid it could not now be enforced because any rights thereunder have become barred by the five year statute of limitations; the lease was duly recorded in the office of register of deeds of Douglas county.
The petition further, in substance, alleged:
On June 8, 1942, Sherman came to plaintiffs in great haste and asked them to sign what purported to be a communication to the State Bank of Lecompton, J. W. Kreider, president, Henry Leslie and Nettie Leslie, and represented to them the letter was for the purpose of authorizing payments, which were supposed to be made under the terms of the 1929 lease, to be made to the Lecompton State Bank, or J. W. Kreider, president, instead of directly to plaintiffs; plaintiffs did not read the letter but being willing the royalty payments should be so made signed the letter being yet ignorant of the fraudulent representations which induced them to sign the 1929 lease.
The letter reads:
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