Matthews v. Jackson

• Decision Date: 12 June 1954
• Docket Number: No. 39260,39260
• Citation: 176 Kan. 397,271 P.2d 798
• Parties: MATTHEWS et al. v. JACKSON et al.
• Court: Kansas Supreme Court

Page 798

271 P.2d 798

176 Kan. 397

MATTHEWS et al. v. JACKSON et al.

No. 39260.

Supreme Court of Kansas.

June 12, 1954.

Syllabus by the Court.

1. Defendants filed a motion to quash the service of summons on the ground the defendant whose residence was within the jurisdiction of the trial court was merely a nominal party and not a real party in interest; this motion was overruled and later the same defendants answered the petition and filed a cross petition in which they asked for a money judgment against the plaintiffs--Held, they cannot base error on the failure of the trial court to sustain their motion to quash service of summons.

2. In an action such as that described in the first paragraph of this syllabus appellants did not file a transcript of the proceedings in the trial court with the clerk of the court until a day or two before the submission of the appeal--Held, G.S.1949, 60-3311, requires this transcript to be filed so as to be available to the appellees for such use as they may desire to make of it.

3. In an action such as that described in the first paragraph of this syllabus even though failure of counsel for appellants to file a transcript of the proceedings limits the scope of review on appeal, we have examined the abstract that was furnished and find there was substantial evidence to sustain the findings of the trial court.

J. Wirth Sargent and James W. Sargent, Jr., Wichita, argued the cause, and W. D. Jochems, Emmet A. Blaes, Roetzel Jochems Robert G. Braden, S. C. Durbin, J. Francis Hesse and Stanley E. Wisdom, Wichita, were with him on the briefs, for appellants.

Robert M. Bond, El Dorado, argued the cause, and L. J. Bond, El Dorado, was with him on the briefs, for appellees.

SMITH, Justice.

This was an action to recover money on a written contract. Judgment was for plaintiffs. Defendants have appealed.

The action was by one partnership against another partnership and certain other individuals.

The petition alleged that plaintiffs' residence was Butler county, Kansas; that defendant Jackson was the agent of a partnership, the Newton Oil and Gas Company, whose address was Newton; that Jackson, Swank and Hazard were members of the partnership; that defendant Citizens State Bank of El Dorado was escrow agent under the terms of a written contract, by the terms of which plaintiffs agreed to complete on oil and gas well, which contract was attached to the petition; that pursuant to the contract $3,000 was deposited in defendant bank by the Newton Oil and Gas Company, and plaintiffs pursuant to this contract moved their machinery on the lease and proceeded to do the work, in accordance with its terms. The petition then referred to two earlier supplemental contracts between the parties and copies of all three were attached to the petition; that plaintiffs and fully complied with all the contracts and defendants refused to pay them money due them by their terms; that plaintiffs were entitled to the $1,000 remaining in escrow and $2,430 additional for day work and shut-down time; and were entitled to an order directing the bank to pay plaintiffs $1,000 then in escrow; that plaintiffs were ready and willing to pull the pipe and put it on top of the ground in accordance with the third supplemental contract, but defendants refused to carry out its terms.

Judgment was prayed against the partnership and the individual defendants in the amount of $3,430, and further that the $1,000 in escrow in the bank be ordered paid to the plaintiffs and credited upon sums due from the other defendants.

The petition referred to three contracts, each of which was attached. Only the last of these, however, under date of July 10, 1951, is brought here in the record. It referred to the other contracts and stated that a controversy had arisen between the parties and that the defendants agreed to pay plaintiffs $500 in cash in full settlement for all work done to date, and authorized the escrow bank forthwith to pay plaintiffs $2,000 of the $3,000 in escrow and that the bank should retain the balance of $1,000 to be paid plaintiff on completion of the work and the bank should also deliver to plaintiffs an assignment for a one-sixteenth interest in the leases of defendants. The contract further provided that plaintiffs agreed to lift the casing in the well so that the pipes might be cemented to keep out the water; and to drill out the cement and to plug and swab the well for four consecutive days, and plaintiffs would not be entitled to any additional charge for that work, but all expense of the cementing should be borne by defendants; that if the well should be a dry hole plaintiffs should pull the pipe and put it on top of the ground and the cost incidental to this should be borne by defendants; that plaintiffs would carry out the terms of the contract and would not abandon the work before completion, but would not be responsible for delay caused by defendants.

The answer of the bank admitted the making of the contracts and that it had in its possession $1,000 as escrow agent and alleged that plaintiffs should be put on strict proof as to the balance of the petition.

The defendant partnership and its alleged agent filed a motion to quash the summons for the reasons that they were residents of Harvey county and venue of the action was in Harvey county, not Butler; that defendant Swank was only a nominal party for the purpose of jurisdiction and not a necessary or proper party to the action; that the defendant bank was a nominal and not a necessary party. Similar motions were filed by Swank and Hazard. These motions were all overruled.

Thereupon an amended petition was filed whereby plaintiffs alleged themselves entitled to $12,000 in addition to the $1,000 escrow money for shut-down and working time after defendants had violated the terms of the contract and refused to allow plaintiffs to move their equipment; the amended petition against alleged plaintiffs were entitled to the $1,000 escrow money.

Judgment was prayed against all the defendants for $13,000 and that $1,000 in the bank be ordered paid on the judgment.

Defendant Swank answered denying that he was a member of any partnership and denying that he was indebted to plaintiffs in any sum whatever; defendant Hazard denied that he was a member of any partnership known as the Newton Oil and Gas Company or any other partnership transacting business with plaintiffs and denied that he was indebted to plaintiffs in any sum whatever.

As a result of motions to make definite and certain the defendants, the partnership and certain individual defendants, filed a second amended answer and a cross petition in which they admitted the execution of the contracts and the deposit of the $3,000 in the bank. The answer then alleged that at the time of the execution of the contracts plaintiffs knew that at the bottom of the hole a bailer had been lost and could not be recovered and falsely represented to defendants that the hole could be swabbed in accordance with the contracts and these representations were made to defraud the defendants of the balance deposited, defendants having no knowledge of these facts and believing the representations were induced to execute the third contract; that immediately upon discovery of these facts defendants gave plaintiffs instructions to remove their rig from the premises and released them from any duty under the contract, but plaintiffs refused to remove their rig. For further answer and cross petition against plaintiffs the defendants incorporated the allegations of the answer and alleged that by reason of the false representations that the well could be swabbed the defendants suffered a loss of $30,000, representing the cost of the purchase of the well in the sum of $22,500 paid for the well and $7,500 paid to the plaintiffs for additional work; that on account thereof plaintiffs were not entitled to judgment directing the bank to pay them the $1,000 in escrow and defendants were entitled to judgment against plaintiffs for $30,000. Judgment was prayed in that amount.

The reply and answer of the plaintiffs was a general denial. The reply of defendants was a general denial.

The case was submitted to the trial court without a jury. At the close of plaintiffs' evidence the defendant partnership's demurrer to it was overruled. The demurrer of Swank to the evidence was sustained. The plaintiffs demurred to the evidence offered by defendants in support of their cross petition and this demurrer was taken under advisement by the court.

Plaintiffs were given leave to amend their amended petition by asking for judgment for the reasonable value of the use of their equipment to conform to evidence in the case.

The trial court found the issues in favor of the plaintiffs, ordered the defendant bank to pay plaintiffs the $1,000 on deposit and gave plaintiffs an additional judgment in the amount of $7,500 and further found that defendants were not entitled to any relief against plaintiffs on their cross petition.

The trial court further ordered that plaintiffs should proceed to pull the casing in the well and place it on the ground in accordance with the terms of the contract, but plaintiffs should not be required to do so unless notified in writing by defendants on or before a certain date and if no notice was given by defendants, plaintiffs should remove their equipment and should not be liable to defendants.

Defendants moved for a new trial on the grounds of abuse of discretion by the trial court; misconduct of prevailing party; accident and surprise; defendants not afforded a reasonable opportunity to present their evidence; erroneous rulings; the verdict was given under the influence of passion and prejudice; and the verdict in whole or in part was contrary to the evidence.

The plaintiffs filed a motion for a new trial on the question of damages only. These motions were all overruled.

The notice of appeal was to the...