McGill v. Riley

• Decision Date: 12 April 1919
• Docket Number: 21,901
• Citation: 104 Kan. 534,180 P. 198
• Parties: CHARLES B. HUDSON and GEORGE MCGILL, Appellees, v. L. C. RILEY, FRED TAINTOR, and M. E. RILEY, Appellants
• Court: Kansas Supreme Court

180 P. 198

104 Kan. 534

CHARLES B. HUDSON and GEORGE MCGILL, Appellees, v. L. C. RILEY, FRED TAINTOR, and M. E. RILEY, Appellants

No. 21,901

Supreme Court of Kansas

April 12, 1919

Decided January, 1919.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PROMISSORY NOTE--Written Agreement Relating to Same Matter--Two Instruments Construed Together. Where two or more writings are executed at the same time, by the same parties, relating to the same subject matter, and one of such writings refers to the other, and it is deposited with a third party, to await the happening of certain contingencies, both should be treated and interpreted as a single contract.

2. SAME--Interpretation of Writings for Court--Option to Buy Capital Stock--Consideration for Note. The interpretation of the writings is a question of law for the court, and it is held herein that the transaction between the parties, as evidenced by the writings, gave the defendants an option to buy certain capital stock, and was not an outright sale of it, and that unless such stock was purchased as specified in the agreement, there was no consideration for the note deposited with the escrow agreement and the shares of stock offered for sale.

3. SAME--Unambiguous Written Contract--Parol Evidence to Vary its Terms Inadmissible. Where parties, after negotiations, commit their agreements to an unambiguous writing, it is to be presumed that every stipulation and material matter have been included in the writing, and parol evidence of preceding conversations or negotiations in conflict with the written contract are not admissible in evidence.

4. NEW TRIAL--Court Dissatisfied with Verdict--Duty of Court. Upon a motion for a new trial, the duty devolves on the trial judge to exercise his own judgment as to the credibility of witnesses and the probative force of their testimony, and when he is of the opinion that the verdict is not warranted by the testimony, it is his duty to set it aside and grant a new trial.

Fred Stanley, Claude C. Stanley, Benjamin F. Hegler, and George L. Siefkin, all of Wichita, for the appellants.

Kos Harris, and V. Harris, both of Wichita, for the appellees.

OPINION

JOHNSTON, C. J.:

In an action to recover upon a promissory note for $ 20,000, the jury found for defendants, but the court set aside their findings and verdict and granted a new trial, and from that order defendants appeal.

It is contended that the main ground assigned by the court for granting a new trial was insufficient. In connection with the execution of the note on which a recovery was sought, the following escrow agreement was made:

"THIS AGREEMENT hereby made and entered into this 7th day of October, 1916, by and between Geo. McGill and Chas. B. Hudson of Sedgwick county, Kansas, parties of the first part, and L. C. Riley and Fred Taintor of Sedgwick county, Kansas, parties of the second part.

"WITNESSETH, that whereas the said parties of the second part have for value received executed a certain promissory note together with M. E. Riley in the sum of twenty thousand dollars made payable to said parties of the first part at the expiration of ninety days from this date, January 5, 1917.

"Now therefore, it is hereby agreed by said parties of the first part that they will deposit with the Union State Bank of Wichita, Kan., one thousand shares of the capital stock of the Producers Oil & Gas Company, a Kansas corporation, to be assigned to said parties of the second part upon payment of said note when the same falls due as follows: five hundred of said shares to be assigned to L. C. Riley and five hundred of said shares to Fred Taintor. It is further agreed by and between the parties hereto that in the event said note is not paid when due then said one thousand shares of stock shall be delivered by said bank and revert to said parties of the first part.

"In witness whereof said parties to this agreement have hereunto set their hand on the day and year first above written."

Testimony was offered by the plaintiffs as to oral statements made prior to and at the time the writings were executed, to the effect that the note was given in consideration of an outright sale of shares of the capital stock of the oil company mentioned in the agreement, and that it was not an option. The court instructed the jury, in effect, that if there was an oral agreement by which the plaintiffs sold the capital stock to defendants, and if the note was given by defendants as the purchase price of the stock, it constituted the consideration for the note, and their verdict should be for plaintiffs, regardless of the terms of the escrow agreement, and that consideration should be given to the escrow agreement only in case it was found that no oral agreement for the purchase of the stock had been made.

There was a further instruction that if there was no oral agreement in regard to the purchase of the stock and the execution of the note, nor any other agreements than the note and escrow agreement themselves, that these writings--

"Did not constitute an agreement for the purchase of said shares of stock, but merely gave Riley and Taintor the right to have said stock assigned to them upon the payment of said note for twenty thousand dollars, and if Riley and Taintor did not take the stock, said escrow agreement would constitute simply an offer to sell and there would be no consideration for the note and your verdict should be for the defendants."

In the tenth instruction the jury were told that--

"Evidence has been introduced in behalf of the plaintiffs tending to show that they sold one thousand shares of stock to Riley and Taintor and that the purchase of such stock was the consideration for the note sued on in this action. This testimony has not been denied by any witnesses on the part of the defendants. The witnesses who testified to the sale of the stock have not been impeached as to their...