Schuler v. Myton

• Decision Date: 05 March 1892
• Citation: 29 P. 163,48 Kan. 282
• Parties: H. B. SCHULER v. S. H. MYTON et al
• Court: Kansas Supreme Court

29 P. 163

48 Kan. 282

H. B. SCHULER v. S. H. MYTON et al

Supreme Court of Kansas

March 5, 1892

Error from Cowley District Court.

ACTION by Myton and another against Schuler, to recover on a certain subscription. Verdict and judgment for the plaintiffs, at the December term, 1889. The defendant brings the case to this court.

Judgment reversed.

S. D Pryor, for plaintiff in error.

Peckham & Peckham, for defendants in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This action was brought by S. H. Myton and A. J. Thompson to recover from H. B. Schuler a subscription of $ 500 alleged to have been made by him to reimburse Myton and Thompson for money guaranteed and paid by them to secure the location of a college at Winfield. In the early part of 1885, the southwestern Kansas conference of the Methodist Episcopal church determined to locate, build and maintain a college under the auspices and protection of that denomination, for the education of the youth of both sexes, and proposed to locate the college at some city in southwestern Kansas whose citizens would agree by donations of land and money to contribute to the securing of suitable grounds for the college, and to the expense of erecting the same upon such grounds. The committee of the conference to whom was confided the duty of determining the location visited several of the cities, and determined that Winfield was a desirable place at which to locate the college, and invited the citizens to make known to the committee what assistance they would give to secure the location of the college at Winfield. Two sites were proposed -- one in the western part of Winfield, and the other in the northeastern portion of the city -- and a contest arose between the parties interested in the real estate surrounding each site to secure the location. In the northeast part of the city was a tract of land known as the Highland Park addition, which was owned by H. B. Schuler S. H. Myton, and six other persons. These parties were anxious to secure the location upon or near their land, and proposed to contribute land and money for that purpose. Other parties purchased and platted the southeast quarter of section 22, township 32, range 4, which adjoined the Highland Park addition, and was known as the "Dr. W. R. Davis land," and proposed to aid in locating the college. A. J. Thompson, one of the defendants in error, also owned land in that vicinity, and was interested in having the college located northeast of the city. The parties interested in this location held several meetings in order to determine the quantity of land and the amount of money which should be offered to the conference committee. The Highland Park company, of which Myton and Schuler were members, proposed to give 20 acres of land and $ 2,800 in money toward securing the college. A definite proposition to the committee was required, and A. J. Thompson and S. H. Myton made a written proposition, as follows:

"WINFIELD, KAS., May 25, 1885.

"We, the undersigned, citizens of the city of Winfield, agree that we will pay to the college of the southwestern Kansas conference, if the same shall be located east of the city of Winfield, in Cowley county, Kansas, and on either the Highland Park addition to the city of Winfield in said county, or on the southeast quarter of section 22, township 32, range 4, in said county, the sum of $ 10,000 in money, and that we will procure and give to said college a good and sufficient deed of general warranty to 20 acres of land in said Highland Park addition, in a solid form and acceptable to the committee of said college whose business it is to locate said college.

"The above proposition is made in consideration of the location of said college at the point above mentioned, and the benefit we derive thereby with this community in general.

"Witness our hands, the day and year first above written.

A. J. THOMPSON.

S. H. MYTON."

In order to enable Thompson and Myton to carry out their proposition, the owners of the Highland Park addition made the following written subscription:

"We, the undersigned, agree to pay S. H. Myton and A. J. Thompson the sums set opposite our respective names when the M. E. college is permanently located in the southwest quarter of the tract of land known as the Dr. W. R. Davis land.

"This subscription is made to enable said Myton and Thompson to make good their guarantee to $ 10,000 to said institution; payments to be made at such times and in such proportion of each subscription as will equal the one-third thereon, as follows: One-third when the foundation of said college building is completed, one-third when the walls of the first story of said building are completed, and one-third when said building is completed and ready for occupancy. H. D. Gans, $ 250; Wm. Newton, $ 350; H. B. Schuler, $ 500; W. G. Graham, $ 500; A. B. Graham, $ 350; J. R. Clark, $ 100; E. S. Bedillion, $ 50; B. P. Wood, $ 100."

The conference determined to locate the college at Winfield, but upon the northwest quarter of the Davis tract of land. This location met the conditions of the proposal made by Thompson and Myton, as their subscription permitted a location on either the Highland Park addition or upon any part of the Davis tract; but the subscription of Schuler and others, for some reason which is not fully explained, did not correspond with that of Thompson and Myton, but was made upon the express condition that the college should be located on the southwest quarter of that tract. There is considerable in the record which tends to show that the intention of all the parties interested must have been to make the subscriptions on exactly similar terms, and that the second subscription was made to reimburse Thompson and Myton for the obligation which they had assumed. The college was built in accordance with the proposition of Thompson and Myton, and they have paid the full amount of their subscription. All of the subscribers who joined with Schuler in the undertaking to reimburse Thompson and Myton have paid their subscriptions and Schuler alone refuses. He claims that his subscription was reduced to writing, and definitely provides that the college shall be located on a certain 40 acres of land, and that, as it has been located elsewhere, there is no liability which can be enforced against him. Upon a trial had with a jury, a general verdict was returned against Schuler for the amount of his subscription, and with it answers to special questions...