Lindberg v. Pence View Farming Co.
Decision Date | 07 July 1934 |
Docket Number | 31754. |
Citation | 33 P.2d 1102,140 Kan. 138 |
Parties | LINDBERG v. PENCE VIEW FARMING CO. et al. |
Court | Kansas Supreme Court |
Syllabus by the Court.
In action to have deed with option contract to repurchase construed as mortgage, trial court's findings on conflicting and substantial evidence as to intention of party are conclusive on appeal.
In grantor's action to have deed with option contract to repurchase construed as mortgage, evidence held to sustain findings for grantee.
Trial court's attention must be plainly and unmistakably called to claimed omission in findings while there is opportunity to make such addition to or correction in findings already made and trial court should plainly decline to make addition or correction to make matter reviewable.
In an action to have a deed with an option contract to repurchase construed as a mortgage, where oral evidence was introduced to show the intention of the parties to the transaction, and the court made findings of fact and conclusions of law and the plaintiff appeals from the judgment of the trial court in favor of the defendant, it is held: (1) That the findings of fact are supported by sufficient evidence; (2) that they show that the plaintiff was unsuccessful in attempting to secure a second mortgage, that he declined the substantial offers made to him to purchase for cash and to exchange for cash and other real property, and that they show an intention of the parties to the transaction to make an absolute conveyance of the property with an option to repurchase the same for a specified amount within a limited time; (3) that the findings of fact of the trial court were based upon written documents and oral evidence and the oral evidence was seriously conflicting; (4) that it is not the province of this court to weigh the evidence and determine the credibility of witnesses when that has been done by the trial court, but the findings of such court upon conflicting and substantial evidence as to the intention of the parties to a transaction of this kind are conclusive upon appeal; (5) that when the trial court omits what appellant regards as a necessary and substantial finding of fact from its findings of fact, the attention of the trial court must be plainly and unmistakably called to such omission while there is still an opportunity to make such addition to or correction in the findings already made and the court should plainly decline to do so in order to make such a matter reviewable; (6) that the findings of fact support the conclusions of law made by the trial court and the judgment in favor of the defendant.
Appeal from District Court, Sedgwick County, Division No. 4; Isaac N. Williams, Judge.
Action by E. Florian Lindberg against the Pence View Farming Company and others. Judgment for defendants, and plaintiff appeals.
B. F Alford and Lloyd F. Cooper, both of Wichita, for appellant.
C. H Brooks, Willard Brooks, Howard T. Fleeson, Frederick W. Aley, and Carl G. Tebbe, all of Wichita, for appellees.
This is an action to have a deed with an option contract to repurchase construed as a mortgage. Copies of the deed and the option contract were attached to the petition as exhibits. The trial court heard oral evidence and made findings of fact and conclusions of law in favor of the defendant, and plaintiff appeals to this court assigning error in the findings, conclusions, and rulings of the trial court.
The deed was a general warranty deed in the usual form, dated December 31, 1930, between E. Florian Lindberg and Dorothy F. Lindberg (his wife), grantors, to the Pence View Farming Company, grantee. Consideration: "One Dollar and other valuable consideration." Property conveyed: "Lots 63 and 65 Lawrence Avenue, in the original town, now city of Wichita." Conveyed free and clear of incumbrances, "except one mortgage to Wheeler, Kelly Hagny Company in the amount of $26,000."
The option contract was as follows:
One of the questions fully argued by both parties to this action, upon which they cite numerous decisions, is the parol evidence rule. Our court has had occasion to apply the rule to the facts and circumstances of may cases, excluding it ordinarily where it tends to alter, vary, or contradict the terms of a written instrument, but admitting it freely, especially in equity cases like this one, to supply matters entirely omitted from the written contract, or to explain the intention of the parties as derived from their acts or conduct as well as their words. The tendency has been so general in this line of cases to learn the intention of the parties that the rule has become very elastic, and it would serve no good purpose in this particular case, where the trial court may have admitted some such evidence near the border line on behalf of the plaintiff who is the appellant here, to attempt a discrimination concerning the same.
The trial court made the following findings of fact and conclusions of law, the former including three additions suggested by plaintiff after they were submitted by the court, no objection being made thereto by the defendant:
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