Letzig v. Rupert
| Citation | 495 P.2d 955,209 Kan. 143 |
| Decision Date | 08 April 1972 |
| Docket Number | No. 46312,46312 |
| Parties | , 55 A.L.R.3d 151 Walter C. LETZIG, Appellants, v. Richard RUPERT, Executor Estate of Juanita R. Rupert, Deceased, and Lloyd R. Wallace, Appellees. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. When a purchaser in a Form 319A 'Option Agreement-Flat Payment,' as described in the opinion, has made payments for such a length of time that the aggregate amount of said payments constitutes the equivalent of a substantial payment of the purchase price the purchaser acquires an equitable interest in the property purchased.
2. A party defrauded in the making of a Form 319A 'Option Agreement-Flat Payment,' who discovers the fraud after having performed to the extent of acquiring an equitable interest in the property purchased, may continue with performance and also have his action for damages.
3. The plaintiffs each have made sufficient payments under the facts and circumstances of this case to acquire an equitable interest in the respective properties purchased by each of them.
4. The trial court erred in finding that the plaintiffs' causes of action were premature, and erred in finding that defendant's motion to dismiss should be sustained unless plaintiffs or any one of them should elect, on or before September 14, 1970, to exercise his or their respective options by depositing the entire amount required to take up his option with the Clerk of that court.
Marion C. Miller, Kansas City, argued the cause and was on the brief for appellants.
William E. Scott, Kansas City, argued the cause and was on the brief for appellees.
This is an action for damages caused by the misrepresentation, fraud, and deceit of the defendant. The trial court sustained a motion for summary judgment in favor of the defendant on the grounds that the plaintiffs' causes of action were premature.
The controversy centers around Form 319A 'Option Agreement-Flat Payment,' whereby each of the plaintiffs purchased property located in Wyandotte County, Kansas, from the defendant, Juanita R. Rupert, through her agent, Lloyd R. Wallace. It is conceded that each of the parties plaintiff signed the same agreement and each is in the same position. The appellant purchasers will be referred to as the plaintiffs herein and the appellee seller will be referred to as the defendant.
The parties present this appeal in accordance with Rule No. 6(o). The agreed statement approved by the parties and approved by the court in accordance with this rule is set forth as follows:
'Plaintiffs Letzig and defendants executed an instrument, hereinafter set out in full, whereby such plaintiffs would pay an agreed down payment on the agreed price, and by making installments required, would be entitled to a conveyance of the property.
'Plaintiffs Young did likewise, as did plaintiffs O'Haro.
'After having made their respective down payments and installments, during which time they had possession, plaintiffs allegedly claim to have discovered that they had been induced to enter into such purchases by reliance upon misrepresentations of the defendants, to their damage, and thus this action the plaintiffs, by their respective counts of the petition, assert a cause for damages for misrepresentation.
'Defendants claim, and assert by their Motion for Summary Judgment, that suit is premature, and thereby contend that plaintiffs have no cause of action until they complete payment of the agreed price.
'The Honorable Court has adopted this view and so ruled, and dismissed the petition without prejudice, thus creating the real and primary issue: Do plaintiffs presently have a cause of action or must they either pay forthwith the balance due to avoid dismissal, or otherwise continue in due course to make and complete all the payments to discharge the price before being entitled to their recourse to, and relief by, the Courts for their causes of action as stated.
'For purposes hereof, no issue is raised but that all plaintiffs have been, and are, current in installments required.
'Plaintiff Lee Young, now deceased, has been succeeded as a party by Frederick Cross, administrator w. w. a.; and defendant Rupert, since deceased, has been succeeded by Richard Rupert, executor.
'For the reason that same bear, and may be both essential and helpful, for your determination, the Record as follows is incorporated herein by reference.'
By journal entry dated July 27, 1970, the trial court made the following finding:
The sole and agreed question presented by the parties on appeal is whether or not the trial court erred in making this finding. It is apparent that Form 319A 'Option Agreement-Flat Payment,' which is the subject of this action, has been popular for many years and has been used extensively in Wyandotte County, Kansas. The agreement has been before this court for construction on many occasions. (Dengel v. Lowder, 144 Kan. 735, 62 P.2d 866; Rieke v. Smith, 144 Kan. 643, 62 P.2d 889; Home Owners' Loan Corp. v. Torrey, 146 Kan. 332, 69 P.2d 1096; Hively v. Graff, 151 Kan. 594, 100 P.2d 685; Stevens v. McDowell, 151 Kan. 316, 98 P.2d 410.)
Briefly stated, in connection with plaintiff Letzig, the defendant for consideration of the sum of $100.00 gave an option until the first day of May, 1962, to Letzig, to purchase certain real estate in Wyandotte County. The option price was $4,502.37 and Letzig had the right to extend the option from month to month by paying the sum of $40.00 on the first day of each succeeding month. The agreement further provided that in the event of the exercise of the option, Letzig would be entitled to credit for the payments made to the defendant on the purchase price of the real estate. Other provisions of the contract are not necessary to decide the point on appeal.
In Stevens we properly construed this contract in the following language:
'The bench and bar of this state have long been familiar with a form of realestate contract between two parties, whom for convenience we will name as the owner-vendor and the tenant-vendee, in which the former names a price at which he will sell the property and names a specified amount to be paid monthly, and in which he agrees to let the latter into possession upon condition that if the monthly payments are made until their aggregate sum amounts to the specified purchase price the property shall be conveyed to the latter; but if the tenant-vendee fails in his monthly payments then whatever amounts he shall have paid are to be considered merely as rent for the premises, and he shall have no interest in the property and may be removed therefrom as in forcible detainer. There are many clever, even devious, contracts to this effect, and the sum of judicial dealing with them in this and other courts may be stated to this effect: If the down payment by the tenant-vendee has been negligible, and his monthly payments have been but few or have only been paid irregularly, to the manifest loss of the owner-vendor, the contract will ordinarily be enforced according to its terms. (Roberts v. Yaw, 62 Kan. 43, 49, 61 P. 409; Drollinger v. Carson, 97 Kan. 502, 155 P. 923; Heard v. Gephart, 118 Kan. 82, 233 P. 1044; Rieke v. Smith, 144 Kan. 643, 62 P.2d 889.)
'But if the monthly payments have been made with reasonable promptness and have been made for such a length of time that their...
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