Maltby v. Sumner

• Decision Date: 10 June 1950
• Docket Number: No. 37900,37900
• Citation: 219 P.2d 395,169 Kan. 417
• Parties: MALTBY et al. v. SUMNER et al.
• Court: Kansas Supreme Court

Page 395

219 P.2d 395

169 Kan. 417

MALTBY et al. v. SUMNER et al.

No. 37900.

Supreme Court of Kansas.

June 10, 1950.

Rehearing Denied July 7, 1950.

Syllabus by the Court.

1. The interpretation of a written instrument is a judicial function.

2. The intent and purpose of a written instrument is not to be determined by considering one isolated sentence or provision thereof but by considering and construing the instrument in its entirety.

3. If a written agreement of compromise and settlement is actually ambiguous as to some specific matter facts and circumstances existing prior to and contemporaneously with its execution are competent to clarify its intent and purpose in that regard but not for the purpose of varying and nullifying its clear and positive provisions.

4. The general rule is that a contracting party is bound by an agreement to which he assents, where the assent is uninfluenced by fraud, violence, undue influence, or the like, and he will not be permitted to say he did not intend to agree to its terms.

5. If a person cannot read an instrument, it is as much his duty to procure some reliable person to read and explain it, before he signs it, as it would be to read it before he signed it if he were able to do so, and his failure to obtain a reading and explanation of it is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents.

6. The purpose of the rule requiring contracting parties to learn the contents of an instrument before signing it is to give stability to written agreements and to remove the temptation and possibility of perjury, which would be afforded if parol evidence were admissible to vary the terms of such instruments.

7. The pleadings in an action instituted to set aside two deeds, examined, considered and held: (a) The fundamental differences between the contracting parties, according to plaintiffs' allegations, all arose out of an alleged breach by defendants of a single oral contract; (b) if the compromise and settlement agreement set forth in the opinion does not actually disclose on its face the parties intended to settle all differences then and theretofore existing between them, facts and circumstances pleaded by plaintiffs disclose the parties must have intended to settle all such differences in order to re-establish amiable relations between them; (c) the fundamental theory on which plaintiffs' cause of action was predicated is inconsistent and cannot be sustained; and (d) the district court properly sustained defendants' motion for judgment on the pleadings.

W. S. Norris, of Salina, argued the cause, and F. C. Norton and H. L. Smith, both of Salina, were on the briefs, for appellants.

Evart Mills, of McPherson, argued the cause and was on the briefs, for appellees.

The opinion of the court was delivered by

WEDELL, Justice.

This appeal arises out of an action to set aside two deeds and was taken by plaintiffs from an order rendering judgment against them pursuant to a motion for judgment on the pleadings.

The appeal requires examination of the verified pleadings consisting of an amended petition, answer and amended reply. Before narrating the essence of material portions of such pleadings a brief general statement of admitted facts may be helpful.

We shall continue to refer to the parties as plaintiffs and defendants, except as we refer to certain of them by name. The plaintiffs are D. R. Maltby, a widower and his two sons, Arthur Raymond Maltby and L. H. Maltby, also referred to as Harold L. Maltby. The defendants are Mary Kathleen Sumner, formerly Mary Kathleen Foster, and her husband, Milton T. Sumner. Mary Kathleen is a daughter of a prior deceased adopted daughter of the plaintiff, D. R. Maltby, and his deceased wife. Mary Kathleen's mother died in 1932 and Mary Kathleen was reared in the D. R. Maltby home.

The foundation of plaintiffs' cause of action to set aside two deeds executed and delivered to Mary Kathleen is that such deeds were executed in consideration of and pursuant to a certain previous oral contract made by D. R. Maltby for himself and on behalf of the two plaintiff sons with Mary Kathleen Sumner and her husband. The oral contract alleged by plaintiffs was that the contracting parties had agreed defendants would keep house and care for D. R. Maltby during the remainder of his life, that defendants breached the agreement and that both deeds were therefore invalid.

The amended petition, in substance, further alleged: D. R. Maltby's wife died in 1944; defendants lived with and kept house for D. R. Maltby (to whom we shall hereafter refer to as 'D. R.') in an affectionate and careful manner until on or about June 11, 1947, when D. R. for himself and on behalf of his two sons entered into an oral contract with defendants whereby it was agreed if defendants would continue to so care for D. R. during the remainder of his life he would convey, and cause to be conveyed, to Mary Kathleen the McPherson residence property in which D. R. and defendants were then living, subject to the reservation of a life estate in D. R., and that he would also convey a one third interest in a business building in McPherson, likewise subject to a life estate in D. R.; that D. R. would convey an equal undivided one third interest in said business building to each of his two plaintiff sons; that D. R. would further contribute a certain amount of money monthly toward his care; (he was then over eighty years of age) pursuant to such oral agreement D. R., on June 11, 1947, executed such a deed to the business property to his two sons and Mary Kathleen; (this particular deed to the business property recited the consideration was 'One Dollar ($1.00) and Love and Affection * * *') on June 23, 1947, D. R. together with his two sons and their wives executed a warranty deed whereby they conveyed to Mary Kathleen all of the undivided interests of the plaintiffs in the residence property, also subject to a life estate in D. R.; (this deed recited the consideration for the conveyance of the residence property to be $10.00 and other valuable consideration. Revenue stamps in the sum of $2.20 were attached to the deed by D. R.) the deeds were recorded on October 20, 1947, and September 2, 1947, respectively.

The amended petition, in substance, further alleged: The only consideration for the two deeds was the promise and agreement of defendants to make a home and care for D. R.; the actions and conduct of defendants prior to the execution of the deeds whereby they indicated affection and respect for D. R. were false and a pretense for the purpose of procuring the deeds; their conduct constituted a fraud on D. R.; defendants originally intended to breach the contract; within two or three weeks after the execution and delivery of the deeds to Mary Kathleen, the defendants breached the contract and ceased to treat D. R. with the affection and respect they formerly had; by reason of such breach the consideration for the deeds failed, the deeds were invalid and should be set aside.

The answer of defendants first contains a general denial of all matters alleged in the amended petition not expressly admitted in the answer. The answer, in substance, further states: An entirely different oral contract was made between defendants and D. R. relative to the latter's care from that alleged by plaintiffs; the oral contract was made in April, 1944, and not in 1947 as claimed by plaintiffs; the oral contract was made shortly after the death of D. R.'s wife in 1944; it was at the time of the funeral of D. R.'s wife that he requested defendants to leave their home and business in Taxas and to come and make their home with him in the McPherson residence property; the agreement was if defendants would come and make a home for D. R. he would will the residence property and its furnishings to Mary Kathleen and defendants could have free use of the home and its contents so long as D. R. lived; defendants disposed of their furniture in Texas, left their business, came to live with D. R. on or about April 15, 1944, and continued to live with him until about June 1, 1948; the business property was not involved in the oral contract; it was the residence property only which D. R. agreed to will to Mary Kathleen together with its furniture and contents.

The answer, in substance, further alleged: D. R. changed the oral contract after defendants were living with him; D. R. advised defendants it was necessary for him to change that contract as he had previously devised one third interest to Mary Kathleen and the two sons by a former will; by reason of such change defendants were obliged to and did purchase the residence property from D. R. and the latter adjusted the situation by executing a codicil to his former will on June 8, 1944; (the codicil was attached to the answer) the deeds in question to the residence and business property were subsequently executed on June 11, 1947, and June 23, 1947; the conveyance of the business property was in nowise related to the oral contract; that conveyance constituted a gift of an equal undivided one third interest to Mary Kathleen and to the two sons; that deed was executed by D. R. as a part of his plan to divide his property among the three grantees during his lifetime instead of leaving it to become a part of his estate and also to prevent an alleged creditor from reaching any part of it; defendants did not breach the oral agreement; in 1948 D. R. was eighty-eight years of age; Mary Kathleen was twenty-eight and her husband thirty-six; by reason of the disparity of ages between D. R. and the defendants and their children and the differences in their attitudes and viewpoints D. R. became dissatisfied with defendants and on May 26, 1948, served notice on them to vacate the premises; he served another such notice on July 3, 1948, at the time he filed suit against defendants in the district court to enjoin and...