Marshall v. Duncan
| Decision Date | 08 March 1958 |
| Docket Number | No. 40796,40796 |
| Citation | 322 P.2d 762,182 Kan. 540 |
| Parties | Deering J. MARSHALL, Appellee, v. Vernal DUNCAN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Under the provisions of G.S.1957 Supp., 60-510, an action to compel the specific performance of a contract for the sale of land may be brought in any county where the land or any part thereof is situated, or in any county where the defendant or any one of the defendants may reside.
2. A motion to make definite and certain lies only when the pleading attacked is so indefinite and uncertain that the nature of the charge or defense is not apparent. G.S.1949, 60-741. This does not mean indefinite and uncertain according to the refinements and technicalities of the common-law system of pleading, and a pleading which fairly apprises the adversary of the nature of the claim or defense suffices against the motion.
3. Where the only purpose of a motion to make the petition definite and certain is to require a plaintiff to plead his evidence, it should be overruled.
4. Motions to make definite and certain, to strike, and to separately state and number rest in the sound discretion of the trial court (G.S.1949, 60-741), and an appeal does not ordinarily lie from rulings thereon. Unless it appears the ruling prejudiced or will prejudice the substantial rights of a party, it will not be reversed.
5. In an action for specific performance of a written contract for the sale of land and for further relief as the court may deem equitable and just, the petition based upon the contract examined, and held that while an action of this character may entitle a party to several forms of relief, the petition states but one cause of action.
6. The want of mutuality is not a defense to an action for specific performance, where the party seeking the relief has fully fulfilled all the conditions of the contract; thereafter, the contract is no longer executory, and the former lack of mutuality, if it in fact existed, is no defense to the executed contract.
Richard M. Driscoll and Jerry E. Driscoll, Russell, were on the briefs for appellant.
P. K. Smith, F. C. McMaster and Wm. P. Higgins, Wichita, and Glenn V. Banker and John C. Woelk, Jr., Russell, were on the brief for appellee.
This was an action for specific performance of a real estate contract. Defendant appeals from adverse rulings on his various motions and his demurrer to plaintiff's petition, all of which will be discussed below.
A summary of the pertinent allegations of plaintiff's petition follows: It was alleged that Deering J. Marshall, plaintiff (appellee), a resident of Sedgwick county, and Vernal Duncan, defendant (appellant), a resident of Trego county, executed a written contract, under the terms of which plaintiff agreed to sell and defendant agreed to buy, for the sum of $159,000, approximately 2,360 acres of land located in Russell county. A copy of the contract was attached and made a part of the petition.
At the time of the execution of this contract, plaintiff owned all of the real estate, with the exception of 160 acres, title to which stood in the heirs of John P. Ruppenthal, deceased. The contract provided that it was subject to and dependent upon plaintiff's obtaining title to this quarter section of land and in the event he was unsuccessful, defendant could terminate and cancel the contract. Further provisions of the contract called for plaintiff's submitting abstracts of title for examination by the defendant or his attorneys and his executing a warranty deed to all the property, the deed, together with the abstracts of title, to be deposited with the Home State Bank of Russell and delivered to defendant at the time he completed payment on the land.
The petition further alleged that in accordance with the contract plaintiff did acquire for delivery to defendant title to the Ruppenthal quarter section. Thereafter, at defendant's request, plaintiff delivered abstracts of title to all the land for examination by defendant's attorneys, who then made certain requirements which were met by plaintiff within a reasonable time. Title to all the real estate described in the contract was approved as merchantable by defendant's attorneys, and in full compliance with the terms and conditions of the contract plaintiff delivered a warranty deed to all the land, properly executed by him and his wife, for deposit in escrow in the Home State Bank in Russell.
It was also alleged that plaintiff had obligated himself to pay a sum in excess of $17,000 for the purchase of the Ruppenthal quarter section, as well as a further sum for real estate commission, and had canceled an existing lese on said property--all in order to deliver possession as promised.
It was further alleged that the plaintiff had complied with all the terms and conditions of the contract, but that defendant had failed and refused to comply therewith. Plaintiff therefore sought to compel specific performance of the contract and to recover from defendant the purchase price of the land as contracted. He asked for further relief as the court might deem just and equitable.
It is first contended that the trial court erred in overruling defendant's motion to quash the service of summons. This motion was based on the grounds that the action was brought in Russell county and defendant was served with summouns at his residence in Trego county, and that the action was one in personam, plaintiff asking not only for the specific performance of the contract for the sale and purchase of land but, in addition thereto, for judgment against the defendant for damages.
G.S.1957 Supp. 60-510 provides that an action to compel the specific performance of a contract for the sale of land or any part thereof may be brought in any county where the land or any part thereof is located, or in any county where the defendant or any one of the defendants may reside.
G.S.1949, 60-2502 provides that where the action is rightfully brought in any county according to the provisions of article 5 [60-510], a summons may be issued on the plaintiff's praecipe to any other county against any one or more of the defendants. The instant action was one for specific performance of the contract for the sale of land situated in Russell county. The action was therefore properly brought in that county and the defendant was correctly served in Trego county. Tinkler v. Devine, 159 Kan. 308, 154 P.2d 119.
Moreover, in actions for specific performance of a contract concerning realty, it is a well-established practice to ask in the alternative for money damages, providing the court finds it inequitable or impossible to compel specific performance. In all such cases the action is purely equitable and the court has power to grant full relief. Brush v. Boyer, 104 Kan. 168, 178 P. 445; Orr v. Thomas, 105 Kan. 624, 185 P. 1046.
In his brief defendant devotes much argument to the ground that the trial court should have sustained his various motions to make the petition definite and certain, to strike, and to separately state and number the causes of action. It is now an elementary rule of law in this state--which should need no further reiteration--that a motion to make definite and certain lies only when the pleading attacked is so indefinite and uncertain that the nature of the charge or defense is not apparent. G.S.1949, 60-741.
In Parrack v. Wittman, 180 Kan. 193, 302 P.2d 1005, 1008, we said:
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