Minor v. Fike

• Decision Date: 05 July 1907
• Docket Number: 14,992
• Citation: 93 P. 264,77 Kan. 806
• Parties: P. C. MINOR v. J. N. FIKE
• Court: Kansas Supreme Court

93 P. 264

77 Kan. 806

P. C. MINOR v. J. N. FIKE

No. 14,992

Supreme Court of Kansas

July 5, 1907

Decided July, 1907.

Error from Thomas district court; CHARLES W. SMITH, judge.

Judgment affirmed.

H. J Harwi, and Garver & Garver, for plaintiff in error.

Asa M Smith, and Charles Hayden, for defendant in error.

JOHNSTON C. J., GREENE, BURCH, MASON, PORTER, GRAVES, JJ., concurring. SMITH, J. (dissenting)

OPINION

PER CURIAM.

This is an action by Minor to recover from Fike part of the price of a tract of land, the sale of which had been negotiated by Fike. Minor had previously purchased the land through Fike, and before the transfer was consummated it was again sold through Fike to another. It was alleged that Fike agreed to sell it on commission, that later he reported the sale at $ 4600 when in fact he had received $ 5900, and therefore Minor asked for the balance, $ 1300. Fike denied that he was to sell the land on commission but claimed that it was to be a sale at a net price satisfactory to Minor. Minor agreed to, and did, sell the land at $ 4600, and before the transaction was closed he learned that Fike had received more than that sum for the land. In a dispute which arose between them Minor insisted that as Fike had gotten more than $ 4600 for the tract he should not only forgive the commission, the compensation for selling the land, but should pay Minor part of the excess which had been received. After considerable bantering a compromise was made by which Fike agreed to pay, and Minor to accept, $ 30 as a final settlement of the transaction. Fike issued his check for that amount and gave it to Minor, and on the back of the check there was written a receipt, or statement, that the check was given as payment and settlement in full on the land transaction.

Upon testimony, some of which was conflicting, the trial court found that Minor, knowing and insisting that Fike had received much more than $ 4600 for the land, settled with him, and that this settlement was binding upon both parties.

Granting that there was misrepresentation as to the price received for the land when the sale was reported, it must be held under the testimony and findings of the court that there was no fraud in the compromise and settlement subsequently made. There was knowledge that Fike had received considerable more than was paid to Minor, a dispute as to what portion of the excess should be paid to Minor, and a settlement without fraud as to the amount. A compromise and settlement of a bona fide dispute, although the amount agreed to be paid may be much less than is actually due, is supported by a consideration, and if fairly made bars a recovery on the claim included in the settlement.

The settlement in this case, resting as it does on sufficient testimony, makes the findings of the trial court conclusive on this review. The judgment is affirmed.

JOHNSTON, C. J., GREENE, BURCH, MASON, PORTER, GRAVES, JJ., concurring.

DISSENT BY: SMITH

DISSENT

SMITH J. (dissenting): The per curiam decision announces, in effect, that all the...