Lindberg v. Pence View Farming Co.

Decision Date07 July 1934
Docket Number31754.
Citation33 P.2d 1102,140 Kan. 138
PartiesLINDBERG v. PENCE VIEW FARMING CO. et al.
CourtKansas 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.

HUTCHISON Justice.

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:

"This contract, entered into this 31st day of December, 1930, between the Pence View Farming Company, of Wichita, Kansas, parties of the first part, and E. Florian Lindberg and Dorothy F. Lindberg, Husband and wife, of Wichita, Kansas, parties of the second part, witnesseth:

"Whereas, parties of the first part have by warranty deed dated December 31, 1930, and in consideration of the sum of Six Thousand ($6000.00) Dollars, paid to the parties of the second part, purchased and acquired title to, and taken possession of, real estate situated in Sedgwick County, Kansas, described as follows: Lots 63 and 65, Lawrence Avenue, Old Town Addition, City of Wichita. And it is desired hereby to give to the parties of the second part an option to repurchase said real estate;

"Now, therefore, in consideration of One Dollar and other valuable consideration, receipt of which is hereby acknowledged, the parties of the first part hereby give to the parties of the second part an option until July 1, 1933, to purchase the above mentioned real estate upon the following terms:

"A thirty days' written notice must be given to the parties of the first part prior to the date the option is to be exercised the parties of the second part shall tender to the parties of the first part the purchase price as hereinafter set forth. This means that the last date on which a notice can be given is June 1, 1933. The giving of the notice shall not bind the parties of the second part to complete the purchase.

"A purchase price if the option is exercised shall consist of Eleven Thousand Five Hundred Dollars, plus an amount which would be equivalent of interest at the rate of 8 percent per annum upon said purchase price from the date of this contract until the date the purchase price is paid plus all sums which parties of the first part between this date and the date the purchase price is paid shall pay out on account of said property, including interest upon the mortgage now standing against the property, and payments upon the principal thereof, all taxes and assessments, insurance, repairs, maintenance, hire of attorneys and agents, and any other reasonable expense incident to the management of said property, until the date the purchase price is paid. As an offset to said additions to the purchase price, the parties of the second part, in case the option is exercised, shall receive credit for ninety-five percent (95%) of all net rentals collected on said property from this date until the purchase price is paid. The parties of the first part prior to the exercise and consummation of the option shall be accountable only for actual rents received and not for rental value.

"Time shall be the essence of this contract, and the option shall cease and terminate if the notice to exercise same shall not have been given by 12 o'clock on June 1, 1933, and if the purchase price shall not have been paid by 12 o'clock noon of the thirtieth day after the giving of the notice.

"The benefits and burdens of this contract shall extend to the heirs, executors, administrators and assigns of the respective parties.

"In witness whereof, the said parties have hereunto subscribed their signatures this 31st day of December, 1930.

"The Pence View Farming Co.

"Per Iris Pendleton, Treas.

"Party of the First Part.

"Florian Lindberg

"Dorothy F. Lindberg

"Parties of the Second Part.

"Should parties of the second part purchase the above property on the above terms prior to March 31, 1931, the price of purchase shall be $2500.00 less than the above figures.

"The Pence View Farming Co.,

"Per Iris Pendleton, Treas."

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:

"Findings of Fact and Conclusions of Law as Amended
"The plaintiff brings this action to have a deed declared a mortgage.
"The Court finds:
"1. That on the 31st day of December, 1930, and for some time previous thereto the plaintiff was the owner and in possession of Lots 63 and 65 on Lawrence Avenue in the Original Town, now City, of Wichita, Sedgwick County, Kansas.
"This is a business property in the second block on North Lawrence Avenue.
"There was a mortgage on it of $26,000 to The Wheeler, Kelly Hagny Trust Company. This mortgage was made about August, 1930, and given for a period of ten years.
"That the plaintiff was offered $42,000.00 cash for the said property subject to the $26,000.00 mortgage thereon, by James H. Stewart, a man financially able to complete said purchase, which offer was declined by the plaintiff; that the plaintiff had an offer of $8,000.00 cash and exchange of other real property for his equity in said premises, which offer was made by John H. Burns, who was
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