Lewis v. Kimball

• Decision Date: 08 June 1918
• Docket Number: 21150
• Parties: LEWIS v. KIMBALL.
• Court: Kansas Supreme Court

173 P. 279

103 Kan. 173

LEWIS v. KIMBALL.

No. 21150

Supreme Court of Kansas

June 8, 1918

Syllabus

The law favors the compromise and settlement of disputes, and when parties without fraud enter into an agreement settling and adjusting a dispute, neither is permitted afterward to deny it.

It having been found that an agreement, based on a good consideration settling the amount to which the plaintiff was entitled for services rendered towards finding a purchaser for the defendant’s land, was made without fraud or concealment, it is binding upon the parties, regardless of the merits of the controversy.

Appeal from District Court, Greenwood County.

Action by W. T. Lewis, revived in the name of Maude Lewis administratrix, etc., against T. W. Kimball. Judgment for defendant, and plaintiff appeals. Affirmed.

Howard J. Hodgson, of Eureka, and Clifford Sullivan, of Howard, for appellant.

Lew E Clogston and Robert H. Clogston, both of Eureka, for appellee.

OPINION

JOHNSTON, C. J.

W. T. Lewis, a real estate broker, brought this action against T. W. Kimball, to recover commissions for procuring purchasers for defendant’s farm. The judgment was in defendant’s favor, and plaintiff appealed. Since the appeal was taken W. T. Lewis has died, and his representative has been substituted.

It appears that in November, 1914, defendant listed his 187-acre farm with plaintiff under an agreement that if he could find a purchaser for $18,700 plaintiff should have $700 as his commission. Shortly afterwards the plaintiff made an arrangement with one Rison of Wichita, by which he agreed to divide the commission with Rison in case he found a purchaser for the land. In January, 1915, plaintiff brought a prospective purchaser named Rutherford to look at the farm and on the same day Rison appeared with a man named Norris, who talked of exchanging other property for the farm. Neither of them was able to make an agreement of purchase or exchange with the defendant. Soon afterwards an agent of Rutherford proposed to pay $17,000 for the land in cash, and an agreement was made by the plaintiff that if a sale was made on these terms he would accept $400 as his commission. A new contract of brokerage was therefore made between plaintiff and defendant on that basis. Under an agreement of sale made between Rutherford and defendant on February 17, 1915, the defendant was to prepare and furnish an abstract of title, and Rutherford was to advance $1,000, and the transaction was to be closed, and the balance due was to be paid on or before March 15, 1915, and if payment was not made when due, the $1,000 advanced by Rutherford was to be forfeited. The sale was never completed, as Rutherford failed to pay the balance due, and the $1,000 was forfeited to the defendant. There was some controversy between the parties as to whether the plaintiff was entitled to a commission for bringing Rutherford and the defendant together, and defendant, while insisting that there was no liability, did pay plaintiff $25 towards his services and expenses in the transaction. Later, and on August 5, 1915, the plaintiff brought an action against the defendant, claiming that $375 was due to him on the transaction. In the meantime some efforts were made by Rison to induce Norris to purchase the land, and negotiations were had between him and the defendant, but Rison stated in his testimony that he had told the defendant he would not expect a commission if a deal was made between him and Norris. After plaintiff’s action for commission had been pending for some time conferences were had between the parties about a settlement of their differences, with the result that an agreement was reached and a stipulation was drawn up by defendant’s...