Russell v. Bovard

• Decision Date: 07 June 1941
• Docket Number: 35064.
• Citation: 113 P.2d 1064,153 Kan. 729
• Parties: RUSSELL v. BOVARD et al.
• Court: Kansas Supreme Court

113 P.2d 1064

153 Kan. 729

RUSSELL v. BOVARD et al.

No. 35064.

Supreme Court of Kansas

June 7, 1941

Syllabus by the Court.

A motion for judgment on the pleadings is equivalent to a "demurrer".

Where trial court recited in the judgment that some conclusions reached might not be borne out by a fair preponderance of the testimony and might not be actually justified by the facts the Supreme Court would reverse the judgment and remand the cause for new trial. Gen.St.1935, 60-3001.

A judgment that has not met the trial court's approval will not be affirmed on appeal.

Where though plaintiff alleged that he was owner in fee simple and was in possession of realty, he also alleged that one of the defendants was in possession and that such defendant had refused to pay rentals, and plaintiff asked judgment for the rents, and for a decree adjudging that plaintiff was entitled to the possession and that a writ of assistance issue defendant was entitled to a jury trial, since the action against such defendant was in effect an action to recover possession of the realty.

A court looks to the substance and not to the form of a pleading and judges it by its allegations and not by the title it bears.

Whether a party is entitled to a jury trial must be determined from the pleadings.

Where plaintiff's petition alleged that one of the defendants owed rent to the plaintiff in a certain sum and such defendant's answer contained a general denial, defendant was entitled to a jury trial on issue as to rent.

Where defendant in his cross-petition alleged that he was damaged by a wrongful attachment of his crops and grain in a certain sum, trial court erred in denying him a trial by jury on that issue.

Generally it is an actionable wrong for a third person without justification to induce one party to a contract to breach the contract to the damage of the other party to the contract.

A cross-petition alleged that defendant had entered into contract with trustees to purchase realty, and that in order to defeat defendant's beneficial interest under the contract, the trustees conspired with plaintiff and another to sell and convey the realty to the plaintiff and that the plaintiff agreed to pay certain sums if the sale to the defendant could be defeated and the realty conveyed to the plaintiff, and that trustees failed and refused to carry out the terms of their contract with defendant, was sufficient as against a demurrer, to state a cause of action against the plaintiff for inducing breach of contract.

1. A judgment that has not met the approval of the trial court will not be affirmed on appeal.

2. Character of pleading is determined from its allegations regardless of designation given it by pleader.

3. Whether a party is entitled to a jury trial must be determined from the pleadings.

4. Generally, it is an actionable wrong for a third person without justification to induce one to breach contract with another to the latter's damage.

Appeal from District Court, Linn County; William F. Jackson, Judge.

Action by Reb Russell against Spencer D. Bovard, Herbert Hoover, and others, for a money judgment against Herbert Hoover, for an agister's lien on livestock, for the sale of livestock and application of the proceeds on the indebtedness, to quiet title, for a decree adjudging the plaintiff entitled to possession of realty, and for a writ of assistance, wherein Herbert Hoover filed a cross-petition. From an adverse judgment, Herbert Hoover appeals.

Judgment reversed, and cause remanded for further proceedings.

Harry W. Fisher and Harry W. Royer, both of Fort Scott, for appellant.

Elmer E. Martin, of Kansas City, and James W. Wallace, of Mound City, for appellee.

ALLEN Justice.

The land involved in this controversy is located in Linn County and was owned by John H. Bovard at the time of his death. Bovard died testate, and the land in dispute was embraced in the residuary clause of the will. It is stated that the residuary devisee predeceased the testator, and that Bovard died intestate as to the land in this litigation. In a proceeding in the district court of Linn county (Cause No. 9656), Spencer D. Bovard and Joseph F. Beurskens were appointed trustees with directions to sell this land, and to report any sales made to the court for approval. It appears that about the same time the court appointed John O. Morse receiver of the property.

The defendant Herbert C. Hoover entered into possession of the land under a written lease executed by the receiver.

The plaintiff, Reb Russell, claims title under a deed bearing date September 30, 1939, executed by the above named trustees.

The present action was brought by Russell against Hoover and numerous other defendants. The petition set forth the facts above outlined and alleged that the plaintiff Russell was the owner in fee simple and that he was in the actual, exclusive, adverse and notorious possession of the land. It was further alleged that the defendant Hoover entered into possession of the land under the written lease executed by the receiver for the term commencing March 1, 1938, and ending February 28, 1939; that the trustees, after their appointment, orally agreed with Hoover that he should retain possession of the land until February 28, 1939, under the terms and conditions of the written lease. It was alleged that Hoover had failed and refused to pay the rentals for the crop year ending February 28, 1939, aggregating $756.72; that on March 1, 1939, Hoover remained in possession of the premises without any agreement "and still occupies the same." It was alleged that Hoover was indebted on the account of the 1939 rental in the sum of $1,500; that the indebtedness due the trustees from Hoover had been duly assigned to the plaintiff Russell; that Hoover had failed and refused to perform the terms of his written lease, but that he continued to occupy the premises and claimed some interest therein.

Plaintiff asked judgment against Hoover in the sum of $2,256.72, that he have an agister's lien on the livestock of Hoover on the farm; that the livestock be sold and the proceeds be applied on the indebtedness; prayed that plaintiff's title be quieted, and for a decree adjudging plaintiff entitled to the absolute possession of the land, and that a writ of assistance should issue.

The petition was amended by attaching a copy of the trustees' deed to the plaintiff. The deed was not recorded.

The answer of the defendant Hoover admitted the appointment of the trustees as alleged in plaintiff's petition, but denied that the deed from the trustees to the plaintiff Russell had ever been delivered; denied that the plaintiff was the owner of the land in fee simple, and denied that he was in possession of the land in dispute.

For affirmative relief the defendant Hoover filed a cross-petition in which he set forth a cause of action against the plaintiff Russell and against trustees Bovard and Beurskens individually, and against Bovard and Beurskens as trustees, and alleged: That the defendant Hoover and Everett McGinnis purchased the real estate involved in this action from the trustees Bovard and Beurskens for the price of $10,500; that a written memorandum of the purchase agreement was executed by Bovard for himself and his co-trustee and by McGinnis; that by the terms of the agreement the defendant Hoover agreed to pay and did pay the sum of $525, rent due on the land for the term expiring March 1, 1940, for and on behalf of McGinnis by a check; that there was at the time and has been at all times since funds in the bank to pay the check; that the check has never been redelivered or tendered back to defendant. It was alleged that in violation of the agreement and to deprive defendant of his beneficial interest under the contract, the trustees Bovard and Beurskens entered into a conspiracy with the plaintiff Russell and a third party, to sell and convey the property to plaintiff and that plaintiff agreed to pay certain sums of money to the trustees and to an agent, if the sale to defendant and McGinnis could be frustrated by a sale to the plaintiff Russell; that in furtherance of such conspiracy the trustees refused to carry out the agreement so made with defendant and McGinnis, and without notice to defendant the trustees secured the approval of the court of the sale to Russell, assigned the rent to Russell, and to defeat the rights and claims of defendant Hoover, attempted to place Russell in possession of the premises, and caused Russell to file the present action to accomplish such unlawful purpose. It was alleged that Russell joined in such conspiracy and did file such action; that the rents had previously been assigned to McGinnis and that Russell had no right or claim to the rents; that Russell wrongfully caused an attachment to issue against the property of this defendant on the premises. Defendant demanded damages against Bovard, Beurskens and Russell in the sum of $2,950. A copy of the written contract between the trustees and McGinnis was attached.

The answer of McGinnis is not set out in full, but is stated to be substantially the same as the answer of Hoover. In his answer it is alleged that by reason of the conspiracy and fraudulent acts of the trustees and Russell, resulting in the sale of the premises to Russell, that McGinnis had been damaged in the sum of $2,525, for which he prayed judgment.

The reply of plaintiff Russell to the answer of McGinnis alleged that the answer did not state facts sufficient to state a cause of action in favor of McGinnis and against the plaintiff; that there is no mutuality in the asserted claims of McGinnis as between the plaintiff and McGinnis and the co-defendants against whom the claims are set up and there is a defect of p...