Sluss v. Brown-Crummer Inv. Co.

• Decision Date: 10 June 1933
• Docket Number: 31162.
• Citation: 22 P.2d 965,137 Kan. 847
• Parties: SLUSS v. BROWN-CRUMMER INV. CO.
• Court: Kansas Supreme Court

22 P.2d 965

137 Kan. 847

SLUSS v. BROWN-CRUMMER INV. CO.

No. 31162.

Supreme Court of Kansas

June 10, 1933

Syllabus by the Court.

Where chief officers of corporation were not found in county service of summons on agent in charge of office and usual place of business of corporation held sufficient (Rev. St 1923, 60--504, 60--509, 60--2518).

Prayer may be considered in determining character of pleading.

Where doubt exists as to whether action is on contract or in tort every intendment should be resolved in favor of construing it as contract action.

Generally where no motion to make more definite has been presented, general demurrer should be overruled if facts stated in petition constitute cause of action whether well pleaded or not.

Inconsistent causes of action or inconsistent defenses do not render pleading demurrable.

Petition not drawn on single and definite theory, or containing confusion so that court cannot determine on which of several theories recovery is sought, is demurrable, where plaintiff defeats every effort of defendant to ascertain on which theory action is based.

Petition alleging contract for repurchase of bonds and demand for performance thereof, and also alleging fraud discovered within six months preceding filing of petition, but not disclosing whether election had been made, held demurrable.

1. The record examined, and held, following McLeod v. Trusler Grain Co., 127 Kan. 119, 272 P. 119, that service of summons was properly made upon the defendant.

2. While the general rule is that, where a general demurrer is filed to a petition, no motion to make more definite and certain having been presented, the demurrer should be overruled if the facts stated constitute a cause of action whether well pleaded or not, and inconsistent causes of action do not render a pleading demurrable, a different rule must be applied where plaintiff, as a result of procuring rulings favorable to him, defeats every effort of the defendant to ascertain on what theory he founds his cause of action; and in such case, if the petition is not drawn upon a single and definite theory, or there is such a confusion of theories that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient, and a demurrer thereto should be sustained.

Appeal from District Court, Butler County; George J. Benson, Judge.

Action by R. E. Sluss against the Brown-Crummer Investment Company. From adverse rulings, the defendant appeals.

Reversed and remanded, with directions.

K. M. Geddes, of El Dorado, and Thomas E. Elcock and James G. Martin, both of Wichita, for appellant.

J. B. McKay, of El Dorado, and W. L. Cunningham, D. Arthur Walker, Fred G. Leach, and Wm. E. Cunningham, all of Arkansas City, for appellee.

THIELE Justice.

This was an action to recover a money judgment on account of a controversy growing out of sales of bonds.

The petition contains numbered paragraphs, the first alleging residence, etc., of the plaintiff, the second that defendant is a Kansas corporation and that at all times mentioned it has maintained an office and place of business in El Dorado, Kan. The third paragraph charges that defendant was aware that plaintiff owned Kansas municipal bonds maturing from time to time, and, acting through its agent and representative, Murray T. Crummer, solicited plaintiff to purchase bonds and securities as he might require, and "orally promised and agreed that with respect to any and all bonds or other securities which the plaintiff might at any time acquire from the defendant, the defendant would repurchase the same on plaintiff's demand for an amount equal to the original purchase price with accrued interest," etc. The fourth paragraph charges that on June 26, 1926, defendant, through its agent Crummer, solicited plaintiff to purchase certain Hidalgo county, Tex., refunding warrants, representing they were as safe and sound for investment as any Kansas municipal bonds; that they were giltedge securities, that defendant had experts investigate the warrants thoroughly and carefully, and they constituted as safe an investment as plaintiff could make; that plaintiff informed defendant's agent he was without knowledge as to said securities, and, if he purchased, he would do so solely in reliance upon defendant's statements, and that defendant's agent repeated the oral repurchase agreement, and plaintiff, believing and relying upon such oral promises, statements, and agreements, purchased said warrants.

In paragraphs 5 to 10, both inclusive, similar allegations are made with respect to six other bond purchases. The eleventh paragraph repeats the allegation that plaintiff was without knowledge as to the value of the bonds and securities, imposed confidence in defendant's agent, and bought relying upon his statements and promises, and that defendant was aware thereof. The twelfth paragraph alleges that defendant's oral promises, statements, and agreements were false, fraudulent, and untrue; that the securities sold to plaintiff were not as safe and sound for investment as any Kansas municipal bond; that defendant had not had experts investigate, and they did not constitute a safe investment; that defendant never had any intention of carrying out its repurchase agreement unless it was to its advantage so to do and entered into such agreement fraudulently to induce plaintiff to purchase; that plaintiff acted in good faith and defendant in bad faith; and that "plaintiff did not learn or ascertain of the falsity of such statements, agreements and representations and of the bad faith of the defendant in the premises until within six months next preceding the filing of this petition."

The thirteenth paragraph alleges matter with respect to the worth of the bonds and securities. The fourteenth paragraph alleges that on February 20, 1932, plaintiff served on defendant's agent, Crummer, a written demand that defendant repurchase said bonds, etc., a copy being attached to the petition, and that notwithstanding defendant neglected and refused to purchase said bonds and securities or any of them; that plaintiff is ready, able, and willing to deliver the bonds, etc., to defendant upon repurchase, and tenders same into court, etc. The remaining paragraph is a prayer for a money judgment and for such other and further relief as plaintiff may be entitled to and for costs.

Summons was issued and served by the sheriff of Butler county, whose return shows he summoned the Brown-Crummer Investment Company, a corporation, by delivering to M. T. Crummer, agent for and on behalf of said company at its office and usual place of business in El Dorado, a copy thereof, that he could not find the president, vice president, treasurer, cashier, trustee, chairman of the board of directors, or other managing officers of said company in Butler county; that no person on whom service could be made in Butler county had been appointed by the defendant; and that, after endeavoring to get service on the officers of the company, he made service on M. T. Crummer, agent, he being the person in charge of the office and usual place of business of said company in El Dorado, and he being the person held out to the public by said company as their agent and representative at El Dorado. "Hence I made service on M. T. Crummer, Agent, by delivering to him a copy of the summons herein ***"

The defendant appeared specially and moved to set aside the service on eleven grounds. After hearing thereon, to which reference will be made, the motion was denied. Defendant then filed its plea in abatement, raising, in substance, the same matters as were presented on its motion to set aside the service, which plea was overruled. Defendant then filed a motion to compel plaintiff to separately state and number his several causes of action, which motion was denied. Defendant then filed a motion to require plaintiff to elect, in which allegations are made as to causes of action on repurchase contract, for relief on account of fraud, for rescission, etc., being blended, confused, and intermingled, and to require plaintiff to elect which of the several inconsistent remedies he will pursue, which motion the court denied. Then followed a motion asking that plaintiff make his petition more definite and certain, and to strike, and this motion was likewise denied.

The defendant then filed its demurrer, setting up all of the statutory grounds except that another action was pending between the same parties for the same cause. The demurrer was overruled and defendant given time to answer.

The defendant appeals from each and all of the above mentioned rulings, and so far as need be they will be noticed seriatim:

On the hearing on the motion to quash, evidence was taken as to the status of the company, where its principal place of business was, the agency, powers, and duties of M. T. Crummer, the particular manner in which Crummer was served, whether or not the defendant company maintained a branch office in El Dorado, and thereafter the court overruled the motion. In connection with the argument as to the correctness of the court's ruling, much space is devoted to whether, by reason of one statement therein, the defendant company entered a general appearance, but our conclusion obviates any necessity of discussing that feature. In connection with venue of actions against domestic corporations, our Code provides that, except in instances not material here, an action "may be brought in the county in which it is situated, or has its principal office or place of business, or in which any of the principal officers thereof may reside, or may be summoned" etc. R. S. 60--504. And R. S. 60--509, provides that every...