Loose v. Brubacher

• Decision Date: 08 May 1976
• Docket Number: No. 47977,47977
• Citation: 219 Kan. 727,549 P.2d 991
• Parties: Frank E. LOOSE and Bessie Loose, Appellants, v. E. J. BRUBACHER, Sr., and Lucille Brubacher, Appellees.
• Court: Kansas Supreme Court

Page 991

549 P.2d 991

219 Kan. 727

Frank E. LOOSE and Bessie Loose, Appellants, v. E. J. BRUBACHER, Sr., and Lucille Brubacher, Appellees.

No. 47977.

Supreme Court of Kansas.

May 8, 1976.

Syllabus by the Court

1. Pursuant to K.S.A. 60-2103(a) a timely motion for new trial suspends the time for appeal until the motion is acted on. A notice of appeal served and filed within thirty days after the denial of a motion for new trial is timely.

2. The election to exercise an option must be made in the manner specified in the option agreement. In determining the meaning of provisions of an option with respect to the mode of acceptance the court should ascertain the intent of the parties in ligh of the language used and surrounding circumstances.

3. Payment or tender of the contract price is not essential to acceptance unless the option agreement makes it a condition precedent to or a part of or necessary to the exercise of the option. In such a case payment may be made within a reasonable time after acceptance.

4. Tender is not required to exercise an option where the purchase price is not definitely fixed and can be determined only after negotiations between the parties.

5. When an option to purchase real estate specifies a definite time within which the option must be exercised but sets an indefinite amount as the purchase price which must be determined in part by debits or credits arising after the option agreement is entered into, notice of intent to exercise the option is sufficient without a tender of payment unless the option agreement contains a specific provision requiring determination of the amount and tender thereof before termination date.

6. Where there is a good faith dispute over the facts the parties must be afforded a trial at which the evidence can be presented and the live facts determined. It is only when there is no genuine issue as to a material fact that the moving party is entitled to judgment as a matter of law.

7. In an action for specific performance of an option agreement for the purchase of real estate the record on appeal is examined and it is held, summary judgment in favor of defendants was improperly granted.

Arthur L. Sparks, Wichita, argued the cause and was on the brief for appellants.

C. Fred Ice, Newton, argued the cause and was not the brief for appellees.

FROMME, Justice.

This appeal is from an order granting summary judgment to defendants, E. J. Brubacher, Sr. and Lucille Brubacher. The plaintiffs, Frank E. Loose and Bessie Loose, filed the action to obtain specific performance of an option agreement to purchase real estate in Harvey County, Kansas. The trial court on the basis of the pleadings and interrogatories held that plaintiffs failed to properly exercise the option within the time limited by the agreement. The plaintiffs appeal. They contend that the case was not ripe for summary judgment.

Appellees have raised a jurisdictional question which merits examination before the substantive issues on appeal are reviewed. Appellees contend that this appeal must be dismissed because it was not timely filed. They contend that no appeal was perfected for more than thirty days after the trial court entered summary judgment. They further argue that although appellants filed a timely motion for new trial the motion for new trial was not necessary and did not extend the time for appeal prescribed in K.S.A. 60-2103.

Appellees rely on Stoke v. Union Pacific Railroad Co., 183 Kan. 659, 331 P.2d 549. In Stock under our former code of civil procedure it was held that a motion for new trial was not necessary to review an order sustaining a demurrer to plaintiffs' evidence, and filing such a motion did not extend the time for appeal.

The decision in Stock was based on G.S. 1949, 60-3309, which provided that an appeal must be filed within two months from the date of judgment from which appeal is taken. No provision for termination of the period allowed for appeal was contained in that former statute. Out present code of civil procedure provides in part:

'When an appeal is permitted by law from a district court to the supreme court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, . . . The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: . . . or granting or denying a motion under section 60-259 to alter or amend the judgment; or denying a motion for new trial under section 60-259.' (K.S.A. 60-2103(a).)

K.S.A.1975 Supp. 60-259 provides that a motion for new trial or a motion to alter or amend the judgment may be filed within ten days of the entry of judgment to seek, among other relief, correction of erroneous rulings of the court. The statute does not require the filing of a motion for new trial as a condition of appellate review. It allows such motions in order that the trial court might review its decision and correct errors before the controversy is submitted to the appellate process. (See Gard, Code of Civil Procedure, § 60-259.)

On September 23, 1974, the appellants filed their motion for new trial asking the court to reconsider its ruling on the summary judgment. The motion was heard and denied on December 4, 1974. Appeal was filed on January 3, 1975. Pursuant to K.S.A. 60-2103(a) a timely motion for new trial suspends the time for appeal until the motion is acted on. A notice of appeal served and filed within the thirty days after the denial of a motion for new trial is timely. (See Ten Eyck v. Harp, 197 Kan. 529, 533, 419 P.2d 922.) This appeal was timely filed.

We turn to the substantive issues raised.

Defendants allege in their answer that plaintiffs failed to exercise their option to purchase within the time limited in the agreement, that plaintiffs waived or forfeited their rights under the option and that it would be inequitable to require specific performance because of equitable considerations. In addition to the answer they filed a counterclaim for recovery of money in which they allege money is due them by reason of plaintiffs' actions and misrepresentations. Although the court summarily denied plaintiffs' action for specific performance it set defendants' counterclaim for trial at a later undetermined date. We are not concerned with the counterclaim.

The primary issue presented on appeal is whether the plaintiffs-appellants were required by the terms of the option agreement to tender the entire purchase price within the time limited in the agreement for exercising the option. The trial court held that they were.

The written option agreement signed by the parties on September 1, 1971, in pertinent part provides:

'. . . In the event that Brubacher acquires merchantable title in and to the following-described real estate located in Harvey County, Kansas, to-wit: (Here the legal description of the 33 acres of land involved in this action is set forth in full.) on or before the 1st day of September, 1973, Brubacher does hereby give and grant to Loose an option to purchase said above- described real estate for the sum of $23,000 on or before the 1st day of September, 1973.

'Provided, however, that Loose shall pay to Brubacher, in addition to the sum of $23,000, the sum of $53.33 per month from the time that Brubacher obtains merchantable title until said option is exercised.'

It should be noted that under the allegations of the petition and the exhibits attached the parties had previously entered into an agreement for a sale of this land from Mr. and Mrs. Loose, plaintiffs, to Mr. and Mrs. Brubacher, defendants. According to allegations in the answer the real estate at that time was heavily encumbered and a suit by the Seneca National Bank was pending against Mr. Loose to recover over $73,000.00 on a corporate indebtedness previously guaranteed by Mr. Loose. The agreement of sale and a warranty deed was executed on July 13, 1971. The deed to the Brubachers was recorded on April 28, 1972. The record does not disclose when title of the Brubachers became merchantable.

At any rate on September 1, 1971, before the deed was recorded and before the title became merchantable, two separate instruments were executed by the parties. The first instrument was the option to purchase which gave rise to this action and the second was a lease of the premises to the Brubachers. At the time these instruments were executed the Brubachers hopefully were to obtain merchantable title at some time in the future. The lease was for an initial term of one year ending September 1, 1972, with a right to renew the lease for an additional term of one year ending September 1, 1973. This was the date the option to purchase was to terminate. The lease provided for the payment of rent by the Brubachers at the rate of $50.00 per month and provided that Loose should retain the use of the basement of the house located on the premises and the use of dog pens. The use of the dog pens was limited to a two month period from the date of the lease. The lease further provided that the Brubachers were not to make alterations on the premises without the consent of Loose. However, the Brubachers allege in their answer that they renovated the bathroom in the house and made other improvements believing the option had been forfeited.

The option agreement further provided that if the Brubachers obtained merchantable title to the property and Loose exercised his option to purchase prior to September 1, 1973, that the Brubachers had a right to continue to occupy the premises until September 1, 1973.

According to the allegations of the answer the $23,000.00 consideration to be paid by the Brubachers was to be used to pay off mortgages on the premises. The Brubachers further allege this amount...