Nelson v. Schippel

• Decision Date: 11 April 1936
• Docket Number: 32527.
• Citation: 143 Kan. 546,56 P.2d 469
• Parties: NELSON v. SCHIPPEL. [*]
• Court: Kansas Supreme Court

56 P.2d 469

143 Kan. 546

NELSON v. SCHIPPEL. ^[*]

No. 32527.

Supreme Court of Kansas

April 11, 1936

Syllabus by the Court.

Motions to strike to make definite find certain, and to separately state and number rest in sound discretion of trial court whose rulings thereon are not ordinarily appealable (Rev.St.1923, 60--3303).

Ruling on motion to strike, to make definite and certain, or to separately state and number is not appealable unless it appears ruling affects substantial rights and in effect determines action (Rev.St.1923, 60-- 760, 60--3303 60--3317).

In action for specific performance of written contract or for damages in the alternative, petition stated but one cause of action, notwithstanding plaintiff might have been entitled to several forms of relief (Rev. St.1923, 60--741).

To determine sufficiency of consideration, contract must be read and construed in its entirety.

Contract providing that in consideration of sister's leasing of property for construction of mercantile establishment brother would deed certain property to sister if lease was not renewed held supported by adequate consideration.

Alleged want of mutuality of contract which stated that party was "about to undertake the construction of a two-story brick mercantile building" held cured by subsequent prompt performance on party's part and alleged lack of mutuality was no longer a defense to such executed contract.

Term "undertake" may mean to lay one's self under obligation to perform.

In action for specific performance of written contract whereby defendant agreed to deed certain realty of definite value if plaintiff would construct building adjacent to defendant's property, petition which alleged complete performance by plaintiff held to state cause of action for alternative monetary relief.

1. Motions to strike, to make definite and certain, and to separately state and number rest in the sound discretion of the trial court, and from rulings thereon an appeal does not ordinarily lie. Unless it appears the ruling prejudiced or will prejudice the substantial rights of a party, it will not be reversed. Unless it appears the ruling affects a substantial right and in effect determines the action, it is not appealable.

2. In an action for specific performance of a written contract or for damages in the alternative, the petition based upon the contract examined and held:

(a) That while an action of this character may entitle a party to several forms of relief, the petition states but one cause of action.

(b) In order to determine sufficiency of consideration, a contract must be read and construed in its entirety, and when so read and construed, the contract in the instant case was supported by adequate consideration.

(c) While mutuality is an essential element of every valid contract, the possible want of it was completely cured by subsequent prompt performance on the part of plaintiff. Thereafter the contract was no longer executory, and former lack of mutuality, if it in fact existed, was no defense to the executed contract.

(d) The petition herein set out stated a cause of action for alternative monetary relief.

Appeal from District Court, Saline County; Dallas Grover, Judge.

Action by Genevieve C. Nelson against John E. Schippel. From a judgment overruling a demurrer, defendant appeals.

C. W. Burch, B. I. Litowich, LaRue Royce, L. E. Clevenger, and E. S. Hampton, all of Salina, for appellant.

Z. C. Millikin and W. C. Millikin, both of Salina, for appellee.

WEDELL Justice.

This was an action for specific performance of a written contract or for damages in the alternative.

Defendant appeals from adverse rulings on motions and demurrers to plaintiffs' respective petitions. Three petitions were filed. Defendant lodged against the original petition a motion to strike a certain portion thereof which was overruled. That portion of the petition remained in the amended petitions and will be treated later. A motion to make the original petition more definite and certain was sustained in part and overruled in part. Against each of the first and second amended petitions defendant leveled a motion to separately state and number the alleged causes of action for specific performance and damages, and, also, demurred to the amended petitions as a whole, and separately to each cause of action attempted to be pleaded for equitable and legal relief, on the ground no cause of action was stated for either form of relief. These motions and demurrers were overruled. Defendant appeals from each and all of the above adverse rulings. Space does not permit setting out three petitions. Proper treatment of the various contentions, however, requires a full copy of the last amended petition and contract. They are appended to and made a part of this opinion.

We shall first consider the overruling on the respective motions. It has been frequently held motions to strike, to make definite and certain, and to separately state and number rest in the sound discretion of the trial court from which rulings ordinarily an appeal does not lie. Unless it is shown such alleged error prejudiced the substantial rights of a party, it will not be reversed. R.S. 60--760; R.S. 60--3317; Hamilton v. Atchison, T. & S. F. Ry. Co., 95 Kan. 353, 148 P. 648; Cribb v. Hudson, 99 Kan. 65, 160 P. 1019; Mullarky v. Manker, 102 Kan. 92. 170 P. 31; Hickman v. Cave, 115 Kan. 701, 703, 224 P. 57; Van Deren v. Heineke & Co., 122 Kan. 215, 218, 252 P. 459; Allison v. Borer, 131 Kan. 699, 293 P. 769.

Defendant moved to strike all that portion of the original petition which in substance is now contained in the second amended petition in paragraph 1 between the words "Montgomery Ward & Co.," to and including the words "and to evidence such agreement." The motion was on the ground those allegations were immaterial, argumentative, redundant, and prejudicial. When a pleading is subject to such complaint, a motion to strike should be sustained. It does not here appear the ruling would prejudice the defense. The ruling was in the discretion of the trial court and its effect is not of such gravity as to justify a reversal. Hickman v. Cave, supra. Furthermore, the order does not affect substantial rights in the action and does not in effect determine the action. The order is therefore not appealable. R.S. 60--3303. See, also, Fox v. Ryan, 121 Kan. 172, 246 P. 520.

Defendant especially insists the court erred in not requiring plaintiff to separately state and number her alleged causes of action for specific performance and for damages. The purpose of this motion, of course, was to have the causes of action separated in order to be enabled to demur to them separately. Such separation was required prior to the amendment of the civil code in 1909 (Laws 1909, c. 182), if different causes of action were in fact set out in the same pleading. That is not the rule now. Mullarky v. Manker, supra. The pertinent portion of R.S. 60--741, reads:

"If a pleading contains several causes of action, or different defenses, the court or judge may, in his discretion, require them to be separately stated and numbered." (Italics inserted.)

Assuming the ruling was appealable, there is but one cause of action and hence the trial court did not abuse its discretion. In a case of this character several forms of relief may be granted, but there is only one cause of action. Henry v. McKittrick, 42 Kan. 485, 22 P. 576; Naugle v. Naugle, 89 Kan. 622, 132 P. 164; Knipe v. Troika, 92 Kan. 549, 553, 141 P. 557; New v. Smith, 94 Kan. 6, 10, 143 P. 880, L.R.A.1915F, 771, Ann.Cas.917B, 362; Cribb v. Hudson, supra.

It is proper in an action for specific performance to plead in the alternative and ask for damages for nonperformance. Henry v. McKittrick, supra; Naugle v. Naugle, supra; Huey v. Starr, 79 Kan. 781, 786, 101 P. 1075, 104 P. 1135; Stramel v. Hawes, 97 Kan. 120, 124, 154 P. 232; Cribb v. Hudson, supra; Knipe v. Troika, supra; Brush v. Boyer, 104 Kan. 168, 178 P. 445; Orr v. Thomas, 105 Kan. 624, 627, 185 P. 1046; Haston v. Citizens' State Bank, 132 Kan. 767, 297 P. 1061, 1062.

In Brush v. Boyer, supra, 104 Kan. 168, at page 169, 178 P. 445, 446, it was said: "In actions for the specific performance of a contract it is the well-established practice to ask, in the alternative, for money damages in the event the court finds it inequitable or impossible to compel specific performance. Naugle v. Naugle, 89 Kan. 622, 629, 630, 132 P. 164; Huey v. Starr, 79 Kan. 781, 101 P. 1075, 104 P. 1135. In all such cases the action is purely equitable, and the court has power to grant full relief."

In Haston v. Citizens' State Bank, supra, it was held:

"The court having held that the plaintiff was not entitled to the specific performance asked, and having before it all the interested parties and all the evidence pertinent to the transaction out of which the controversy arose, was warranted in proceeding to determine the rights of the parties and to administer equity between them." Syl. 4.

But defendant insists the petition was deliberately framed as an equitable action with the hope damages would be awarded in the alternative, when plaintiff knew there could be no recovery of a money judgment on the contract. Defendant insists there never was any question about the fact this contract would not permit a decree of specific performance. He says plaintiff well knew that from the beginning. We are not so sure about that. Defendant himself has prepared about as able a brief on the subject as it has been the pleasure of the author of this opinion to read. We also observed nothing was left untouched on this point in oral argument. It would therefore appear the question was not considered to be so simple. To us, the question is...