Linville v. Nance Development Co.

• Decision Date: 08 December 1956
• Docket Number: No. 40237,40237
• Citation: 304 P.2d 453,180 Kan. 379
• Parties: Naoml LINVILLE, Appellee, v. NANCE DEVELOPMENT COMPANY, Appellant.
• Court: Kansas Supreme Court

Page 453

304 P.2d 453

180 Kan. 379

Naoml LINVILLE, Appellee, v. NANCE DEVELOPMENT COMPANY, Appellant.

No. 40237.

Supreme Court of Kansas.

Dec. 8, 1956.

Syllabus by the Court.

The record examined in an action by the grantee in a warranty deed to recover damages from the grantor for its unlawful construction of a ditch across the real estate conveyed, and held, under the facts disclosed in the opinion, that the trial court did not err:

1. In the admission of testimony as to conversations and negotiations leading up to the execution of the contract of sale;

2. In the admission of testimony after the contract of sale had been signed as to reasons why the ditch had been dug and as to promises it would be refilled and the real estate levelled;

3. In denying defendant's contention there was no action for breach of the original contract because it was merged in a warranty deed later delivered and accepted;

4. In failing to hold that defendant had performed its contract and did not breach it;

5. In denying defendant's contention it had no liability for the breach of any covenant of the deed;

6. In its instructions to the jury;

7. In denying defendant's contention that plaintiff's recovery should be limited to one-half of the amount of damages found by the jury; or

8. In ruling on other contentions mentioned in the opinion.

Marion C. Miller, Kansas City, argued the cause, and Edw. A. Benson, Jr., Kansas City, and Morris Dubiner, Robert E. Gregg, and Fredrick E. Lewis, Kansas City, Mo., were with him on the briefs for appellant.

Joseph P. Jenkins, Kansas City, argued the cause, and Joseph Cohen, Charles S. Schnider, Thomas E. Joyce, John E. Shamberg, Albert M. Ross, Norma Braly, and Harold K. Wells, Kansas City, were with him on the brief for appellee.

THIELE, Justice.

This was an action wherein plaintiff sought to recover damages arising from the construction of a ditch over her real estate by the defendant, which appeals from a judgment rendered against it.

Although the admissibility of parts thereof was questioned, as later noted, the evidence which supports the verdict and judgment later mentioned disclosed the following.

In February, 1952 the defendant, Nance Development Company, then the owner of a tract of about ten acres, filed a plat thereof as Nance's First Division. This plat shows the addition has two unnumbered blocks, divided by a north and south street, containing a total of 36 lots. The lot at the southeast corner of the east block is No. 36 and immediately to its north is lot 35, the real estate here involved; to the west of lot 35 is lot 20. The plat discloses that along the rear of every lot in the addition there is a five foot utility easement. The plat also discloses that there is a fifteen foot easement for surface drainage, which commences at the north line of the west block and proceeds south at the rear of the east tier of lots for a distance and then goes directly east so that the south half thereof covers the north seven and one-half feet of lot 20. The easement then turns south and is on the cast fifteen feet of lot 20. The east line of the easement on lot 20 is the dividing line between lot 20 and lot 35. On some date prior to July 24, 1952, plaintiff and her husband, from whom she was later divorced as hereafter stated, viewed various lots in the addition intending to select one on which defendant was to build a residence which they would purchase. Negotiations were had between the defendant and the plaintiff and her husband for the sale and purchase of a lot at which time plaintiff and her husband were shown the plat of the addition and the reservations were mentioned. They concluded to purchase lot 35, which at that time was level. On July 24, 1952, the defendant and plaintiff and her husband entered into a written agreement for the sale and purchase of lot 35 for $11,500, consisting of a down payment and later payment on delivery of a deed. This contract stated the sale was 'Subject, however, to street, alley and public utilities rights-of-way and building restrictions, driveway easements, party wall agreements and community contracts, if any, shown of record * * *' (Emphasis supplied.) After the contract was signed plaintiff and her husband went to the site and viewed the progress of construction of the dwelling but saw no excavation for a ditch until they started to move furniture into the house on November 1, 1952, when there was an excavation across the rear of their lot, the west side of which was about five feet east of their west line. The excavation was about six feet deep and about fifteen feet wide and the dirt from it was piled to the east of the ditch and as high as the house. The plaintiff and her husband took the matter up with defendant which said it was looking for a gas line and as soon as it was found, the dirt would be replaced and the lot smoothed; that they moved in and defendant kept telling them the ditch would be filled in 'as soon as the weather permitted.' Relying on defendant's statements it would fill the ditch and smooth up the lot, in January of 1953 plaintiff and her husband signed up necessary mortgage papers and received a deed and it was recorded on January 20, 1953. In this deed the lot was conveyed 'Subject to all restrictions and easements now of record.' Thereafter defendant refused to fill the ditch and smooth the lot as agreed, and in September, 1953, plaintiff and her husband commenced an action to recover damages in the sum of $3,000.

We need not follow through the course of the pleadings, but on March 15, 1955, the plaintiff and her husband filed their second amended petition which contained allegations as to the facts above set forth. Defendant's answer included that the cause of action was barred by the statute of limitations; that plaintiffs took possession of the real estate and accepted a deed thereto and paid the balance of the purchase price to defendant, all with knowledge of the matters complained of by them; that the contract of sale became merged in the deed and plaintiffs were estopped from asserting any claimed breach of contract. Defendant also alleged that the acts complained of by the plaintiffs were at the express instance, direction and authority of duly constituted public authority relative to defendant's performance of its agreement, and the exercise of such authority was within the purview and contemplation of the parties in the execution, terms and performance of said contract. Plaintiffs' reply was a general denial. On August 31, 1955, Naomi Linville was divorced from James F. Linville by judgment of the district court of Johnson county. On the morning the instant case came on for trial, November 18, 1955, Naomi Linville moved the court for permission to amend her second amended petition to strike the name of James F. Linville. At that time defendant objected that Naomi Linville would be entitled to only one-half of the damage. The proposed amendment was made, and asserted that Naomi Linville had been damaged in the sum of $3,000.

The trial was by a jury which returned a verdict in favor of the plaintiff for $3,000. The defendant's written motion for a new trial, and its oral motion that the verdict be reduced to $1,500, were overruled by the trial court and judgment was rendered in favor of the plaintiff and against the defendant for $3,000 and costs. In due time the defendant perfected its appeal to this court.

As a predicate to an argument of its specific contentions, appellant states this is an action for breach of contract; that the petition alleges that the ditch was not provided for in the contract of sale or in the deed and was in violation of their terms and conditions, which provided for conveyance by appellant to appellee and did not provide for the digging of a ditch or any easement pertaining thereto; that it had never been pointed out what specific provision prohibited the ditch or how any specific provision of the contract or deed had been violated; that the ditch was not provided for or against, and the contract being silent nothing should be read into it; that the contract was complete, covered all matters contemplated and intended to be expressed and purposely excluded things not covered or mentioned and that there was no ambiguity or uncertainty and no rules of construction apply; that the construction of the contract should be resolved against the appellee and should not be extended by implication to include anything not plainly intended. In general support our attention is directed to Sporn v. Overholt, 175 Kan. 197, 262 P.2d 828. As will develop later, we do not accept fully the predicate stated.

Appellant first contends it was error to permit testimony as to conversations appellee and her husband had with appellant's agent before the contract of sale was signed because such conversations were merged in the contract and were an attempt to vary the terms thereof, and our attention is directed to numerous authorities holding that the general rule is that when parties carry on oral conversations and negotiations leading to the signing of a written contract, all such prior and contemporaneous conversations and negotiations are deemed to be merged in the contract and must be determined from the contract; that parol evidence is not admissible to vary the terms of the written instrument, and where the contract is complete, unambiguous and free from uncertainty, parol evidence of prior or contemporaneous agreements or understandings tending to vary or substitute a new and different contract for the one evidenced by the writing is inadmissible. See, e. g., McKay v. Clark, 162 Kan. 653, 659, 178 P.2d 679, and Cherry v. Joyce, 168 Kan. 475, 213 P.2d 1010. We shall devote no space to the above rules, which are a correct statement of the law, but we cannot agree that application of them results in any holding that the evidence complained of, i. e., as to the type and character of...