Shellberg v. McMahon

• Decision Date: 06 May 1916
• Docket Number: 20,133
• Citation: 98 Kan. 46,157 P. 268
• Parties: REV WILLIAM SHELLBERG et al., as Pastor and Board of Consultors of St. John's Parish of the Roman Catholic Church, Appellees, v. MARGARET MCMAHON, Appellant
• Court: Kansas Supreme Court

157 P. 268

98 Kan. 46

REV WILLIAM SHELLBERG et al., as Pastor and Board of Consultors of St. John's Parish of the Roman Catholic Church, Appellees, v. MARGARET MCMAHON, Appellant

No. 20,133

Supreme Court of Kansas

May 6, 1916

Decided, January, 1916.

Appeal from Washington district court; JOHN C. HOGIN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CONTRACT--For Benefit of Church and Parish School. The pastor of a Catholic church and parish school made a written contract with the defendant by which the defendant agreed to pay the church and school a certain sum of money when they furnished her a clear title releasing her from all claims they might have to certain property by virtue of the last will and testament of her deceased husband. Held:

(1) SAME--Parties Who May Maintain Action on Contract. Under section 27 of the civil code an action may be maintained on the contract for the benefit of the church and school by the person in whose name the contract was made.

(2) SAME--Bona Fide Dispute--Compromise and Settlement--Sufficient Consideration. Since it appears that there was a bona fide dispute between the parties as to whether the school and church had acquired an interest in certain property by virtue of the will, a compromise or settlement having been entered into in good faith, there was sufficient consideration for the agreement to pay.

(3) WRITTEN CONTRACT--Ambiguities Explained by Parol Evidence. The written contract being ambiguous and uncertain with respect to what the church and school were to do or leave undone in order to release the defendant of all claims under the will, it was proper to receive oral testimony in order to show an agreement made before the contract was reduced to writing to the effect that the defendant was to commence some kind of an action to have the will declared null and void, to which the church and school were to interpose no defense.

(4) SAME--Contract Executed--Recovery Thereon. Upon evidence showing that the defendant brought an action against the church and school and procured a decree quieting her title to the property described in the will, and that defendants in that suit interposed no defense, the plaintiffs in the present action are entitled to recover upon the agreement.

Charles W. Clarke, and Edgar Bennett, both of Washington, for the appellant.

W. W. Redmond, of Marysville, and A. J. Freeborn, of Washington, for the appellees.

OPINION

PORTER, J.:

The action in the district court was on a written contract stipulating for the payment by defendant of $ 1600, when the Catholic school of Hanover and the Roman Catholic church furnished her a clear title releasing her from all claims on account of certain provisions in the will of Joseph McMahon, her deceased husband. There was a verdict and judgment for plaintiffs, and defendant appeals.

By his last will and testament Joseph McMahon, after certain minor bequests, devised one-half of his estate, consisting of real and personal property in Washington county, to his wife, and the other half to the St. John's Catholic school at Hanover, Kan., and the Catholic church. Shortly after his death and the probate of his will, the question arose as to the validity of the provisions in behalf of the school and church, and on the 8th of October, 1909, the defendant and Rev. Wm. Shellberg, pastor of the St. John's church at Hanover, entered into the following agreement:

"Washington, Kansas, Oct. 8, 1909. This contract or agreement entered into between the Catholic School of Hanover and the Roman Catholic Church of the first part, and Margaret McMahon, widow of Joseph McMahon, late of Washington county, in the state of Kansas, party of the second part: The party of the second part hereby agrees that when the Catholic School and Church aforesaid furnishes her a clear title, releasing her from any and all claims said School and Church have against her on account of the last will and testament of the said Joseph McMahon, then she is to pay to said officers of the said School and Church the sum of Sixteen Hundred Dollars and no/100. Said agreement hereby to be signed by both Margaret McMahon and Father Shellberg, Priest of the Hanover, Kansas, School, and in case that a clear title is not or can not be furnished by the Catholic School and Church aforesaid and all claims against said estate are legally released, then in that case this contract and agreement is to be null and void, otherwise to be in full force and effect; Provided further that in this case it shall not be construed to require the School and Church to bring any legal proceeding to clear and set aside the claims herein mentioned or set forth in said will.

REV. WM. SHELLBERG,

Pastor of St. John's Church, Hanover, Ks.

Party of the first part.

MARGARET MCMAHON,

Party of the second part."

Nothing appears to have been done by either party under the contract until more than a year thereafter, when Margaret McMahon brought suit to quiet her title to all the property of Which her husband had died seized, and she joined as defendants the St. John's school of Hanover, William Shellberg, rector of the school, and certain others who were described as "consultors" of said school, also the bishop of Concordia and the administrator of the estate of Joseph McMahon, deceased. William Shellberg appeared in person but not by attorney, filed no pleadings and made no other appearance. One of the consultors of the St. John's Catholic church at Hanover acknowledged service of the summons and entered his appearance in writing. No defense was made to the action by any one representing the church or school, and on the 23d of March, 1911, Margaret McMahon's title was quieted as prayed for in her petition.

On her failure to pay the $ 1600 this suit was brought. It is the...