Nauman v. Kenosha Auto Transport Co.

• Citation: 349 P.2d 931,186 Kan. 305
• Decision Date: 05 March 1960
• Docket Number: No. 41683,41683
• Parties: John R. NAUMAN and Frances Nauman, Appellees, v. KENOSHA AUTO TRANSPORT COMPANY, an Ohio Corporation, Appellant.
• Court: United States State Supreme Court of Kansas

Page 931

349 P.2d 931

186 Kan. 305

John R. NAUMAN and Frances Nauman, Appellees, v. KENOSHA AUTO TRANSPORT COMPANY, an Ohio Corporation, Appellant.

No. 41683.

Supreme Court of Kansas.

March 5, 1960.

Syllabus by the Court.

1. In an action for breach of an oral contract wherein it was alleged the defendant agreed, in settlement of the parties' legal differences, to pay the plaintiffs the sum of $2,500 to forbear an action for injunctive relief concerning an existing nuisance and for damages already occasioned by the nuisance, it is held: The finding of the trial court that the alleged agreement was made is supported by sufficient competent evidence, all as set forth in the opinion.

2. A general finding made by a trial court determines every controverted question of fact in support of which evidence has been introduced, and a general finding by the trial court raises a presumption that it found all facts necessary to sustain and support the judgment.

3. Where an oral contract is made in settlement of the parties' legal differences (as described in Syllabus p1), which is separate and distinct from an oral contract for the sale of real property contemporaneously made, the statute of frauds has no application.

4. Where an action is tried to the court, and there is no jury to be misled by incompetent testimony, the presumption is that the trained mind of the trial judge was not led astray nor his judgment perverted by the fact that some incompetent testimony had been aired at the trial.

5. The law favors the compromise and settlement of disputes, and when parties, in the absence of any element of fraud or bad faith, enter into an agreement settling and adjusting a dispute, neither party is permitted to repudiate it.

Marion C. Miller, Kansas City, Argued the cause, and Edward A. Benson, Jr., Kansas City, was with him on the briefs, for appellant.

Wash H. Brown, Kansas City, argued the cause, and Norman B. Sortor, Kansas City, was with him on the briefs, for appellees.

SCHROEDER, Justice.

This is an action for breach of an oral contract wherein it was alleged the defendant agreed, in settlement of the parties' legal differences, to pay the plaintiffs the sum of $2,500 to forbear an action for injunctive relief concerning an existing nuisance and for damages already occasioned by the nuisance.

The trial court found an agreement was made, as a compromise settlement of the plaintiffs' claims, which was approved by the defendant and later repudiated, whereupon judgment was entered for the plaintiffs in the sum of $2,500 and costs.

On appeal to this court two basic questions are presented: (1) Whether there was any evidence to justify the trial court's finding that an agreement had been made; and (2) whether the contract, if made, came within the purview of the statute of frauds.

The defendant, Kenosha Auto Transport Company (appellant), has its location on the north side of the highway on real estate a few miles west of Kansas City, Kansas. The real estate is owned by Nick Demos and his wife. Mr. Demos is the president and a stockholder of the company which has its principal office at Kenosha, Wisconsin. The resident manager at the Kansas City location is Mrs. Frances Myers. She is not an officer or stockholder of the company but an employee, and her immediate superior is Mr. Demos.

The plaintiffs, John R. Nauman and Frances Nauman (appellees), owned and lived on real estate adjoining and immediately north of the property used by the defendant, and their property is geographically located approximately twenty to twenty-five feet below the surface level of the property used by the defendant.

For some time prior to the filing of the petition herein, the plaintiffs were subjected to noxious odors emanating from sewage which drained from the sewage disposal system located on the property occupied by the defendant onto and across the property owned by the plaintiffs.

The controversy concerning the sewage overflow led to negotiations between the parties and their respective attorneys. The issues presented on this appeal stem from these negotiations.

The plaintiffs alleged in their petition that the Kenosha Company through its duly authorized and acting agent, Frances Myers, orally agreed amount other things to pay the plaintiffs the sum of $2,500 if the plaintiffs would forbear and refrain from resorting to the courts. That such agreement was made as a compromise settlement of plaintiffs' claims. It further alleged that plaintiffs, relying on the promise of the Kenosha Company to pay the sum of $2,500, did refrain and forbear from filing an action in the courts for damages and other relief; but that notwithstanding such forbearance defendant has failed, refused and neglected to pay plaintiffs the sum of $2,500 in compromise and settlement as agreed.

A jury was waived and the matter was tried to the court. The plaintiffs' attorney, in his opening statement, for the first time in the lawsuit announced that the agreement was 'that the defendant would pay damages in the sum of $2,500, and purchase outright the property owned by the plaintiff for a total purchase price of $9,250.' He stated the purpose for buying the Nauman property was that no relief could be had other than by an extension of the sanitary sewer system and for that reason the defendant agreed to purchase the house occupied by the Naumans to avoid further lawsuits from the Naumans.

Mr. Nauman testified that he authorized his attorney, Mr. Sortor, to settle on the basis of $9,250 for the house and $2,500 damages. Mor. Sortor testified that he and the defendant's attorney, Mr. Benson, conferred many times, and the defendant's attorney suggested submitting the matter to their respective clients in the forepart of August, 1956. He testified:

'Q. What was again, Mr. Sortor, the agreement that you and Mr. Benson made? A. The final agreement was for $9,250.00 for the sale of the property, the reduced property price to be because of the fact that the Naumans then were to be granted the right to occupy those premises until January 1, 1957, and a figure of 2,500.00 as damages for the damages that the Naumans felt they had suffered prior to that time as a result of this pollution.

'Q. Did Mr. Benson make any statement to you about how he got the authority to make that argeement? A. That he had called Demos in California, that he had finally caught Demos in California, that they had been negotiating back and forth by letter, and he finally said 'He moves around so much that the only way I could catch him was by telephone in California.'

'Q. Did he say that Mr. Demos had approved it? A. He did.'

Shortly thereafter Mr. Benson informed Mr. Sortor that the settlement agreement was off; that Mr. Demos had returned to Kenosha, Wisconsin, and after discussing the matter with the company's chief counsel he changed his mind. Mr. Sortor then testified:

'Q. Did he [Mr. Benson] make any observation with reference to his reaction to this? A. He said he was sorry. He said, 'My client has broken her word, I am sorry. It is up to you and the Courts, now. I have done all I...