Miller v. William A. Smith Constructing Co., Inc., 49588

• Decision Date: 14 July 1979
• Docket Number: No. 49588,49588
• Parties: Harold E. MILLER, d/b/a H. E. Miller & Sons Construction Company, Appellant, v. WILLIAM A. SMITH CONSTRUCTING COMPANY, INC., and Maryland Casualty Company, Appellees.
• Court: Kansas Supreme Court

Page 602

603 P.2d 602

226 Kan. 172

Harold E. MILLER, d/b/a H. E. Miller & Sons Construction

Company, Appellant, v. WILLIAM A. SMITH CONSTRUCTING COMPANY, INC., and Maryland Casualty Company, Appellees.

No. 49588.

Supreme Court of Kansas.

July 14, 1979.

Syllabus by the Court

1. A written agreement, contract or promise in writing which falls within the five-year statute of limitations, K.S.A. 60-511(1), must contain all its material terms in writing.

2. The record on appeal is examined and it is Held : (1) A written purchase order signed by the party to be charged with payment and containing all the material terms of the agreement in writing constituted a sufficient promise in writing so as to come within the five-year statute of limitations when it has been accepted and acted on by the other party; and (2) that portion of the appeal which arose from the summary judgment entered in the district court in favor of Maryland Casualty Company is declared abandoned and said judgment is affirmed on appeal.

Richard W. Niederhauser, of Caenen & Niederhauser, Mission, argued the cause and was on brief, for appellant.

J. Nick Badgerow, of McAnany, Van Cleave & Phillips, Kansas City, argued the cause and was on brief, for appellee Maryland Casualty Company.

Edward H. Powers, Jr., Kansas City, was on brief, for appellee William A. Smith Constructing Company, Inc.

FROMME, Justice:

The Court of Appeals in an unpublished opinion affirmed the district court's judgment in this case holding all claims were barred by the three-year statute of limitations, K.S.A. 60-512(1). This statute covers actions brought upon obligations not in writing. We granted review to consider whether the five-year statute of limitations, K.S.A. 60-511(1), should govern. K.S.A. 60-511(1) provides:

"The following actions shall be brought within five (5) years: (1) An action upon any agreement, contract or promise in writing."

The defendant, William A. Smith Constructing Company, Inc., by its employees, R. H. Miller and D. E. Huncke, after certain oral negotiations, submitted the following purchase order to Harold E. Miller d/b/a H. E. Miller & Sons Construction Company. It should be noted that the R. H. Miller who signed the purchase order had no connection with the latter company. The purchase order was as follows:

                "To H. E. Miller & Sons Constr.  Co
                5801 Outlook
                Shawnee Mission, Kansas                    Date 10 August, 1971
                                                           Terms Net 30 Days
                                                           F.O.B. Job Site
                                                       Ship Via Your Truck
                Rental of Equipment listed below, for work at Mission Lumber Co. 119th St. &amp
                  I-35, as called for by our Mr. Hayes, starting about August 18, 1971
                

1 ea Case Backhoe--Loader 19.00/hr

1 ea 6 1/2 cy tandem dump truck 15.00/hr

                                         Thurs Morning 8:00 a.m
                        371-8184
                                    8-25--71
                WM. A. SMITH                    Charge Job # 468
                CONTRACTING CO., INC
                1401 Fairfax Twy
                Kansas City, Kas. 66115  Signed R. H. Miller
                                         Title
                                         Approved D. E. Hunke
                                                Project Manager"
                

Under this agreement the equipment was furnished to the defendant on six separate days and on completion of the work the plaintiff submitted an itemized statement indicating a total of $1,496.00 was due under the agreement. More than three but less than five years passed before the present action was filed.

The plaintiff asserts that the writing is sufficient to constitute a promise in writing as required by K.S.A. 60-511(1) which limits such actions to a period of five years. Plaintiff argues that the purchase order and billing statement contain all essential terms of the contract between the parties. Nothing more is needed for the court to arrive at the terms and conditions of the agreement.

Defendant asserts that parol evidence is necessary to determine the contractual terms and that the writings do not contain all essential elements of the contract. Although defendant does not specifically state which contractual terms are not in writing, his reliance on Fairbanks v. Koelling, 167 Kan. 361, 205 P.2d 930 (1949), infers that he contends a written promise to pay is missing. In Fairbanks the writing relied on was as follows:

" 'Emmett, Kansas

" 'January 21, 1944

" 'Bought of Lloyd Fairbanks 4 stacks alfalfa, 2 first 2 second cuttings about 35 tons at $19.50 per ton in stack 2 stacks brown alfalfa about 15 ton at $13.00 per ton in stack. $25.00 check as down payment.

" 'C. H. Koelling

" '707 West 17

" '2-8145

" 'Topeka' "

Syllabus.

It is noted in Fairbanks the date of the agreement was given, the parties were named, the alfalfa purchased was specified, the prices were set forth, and the receipt of a check as down payment was acknowledged. The court in Fairbanks held, however, that the instrument was insufficient to be entitled to the protection of the five-year statute. The writing omitted any promise to pay on a day certain. It would not be possible to determine when the statute of limitations would begin to run. The court pointed out, that in order to prove a claim under the writing, evidence would have to be introduced to establish an oral understanding by the parties as to the time and manner of payment.

The general rule is that a written agreement, contract or promise in writing which falls within the five-year statute of limitations, K.S.A. 60-511(1), must contain all its material terms in writing. A contract which is partly in writing and partly oral is in legal effect an oral contract so far as the statute of limitations may be concerned. The writing necessary to have the additional protection of the five-year statute must be full and...