Thompson v. Meyers, 46495
| Decision Date | 20 January 1973 |
| Docket Number | No. 46495,46495 |
| Citation | 505 P.2d 680,211 Kan. 26 |
| Parties | L. V. THOMPSON, Appellee, v. Keith L. MEYERS and Fred W. Reust, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The sense in which a word or term is used in a contract is to be ascertained from the intention of the parties as it may be expressed in the instrument as a whole.
2. In common parlance the term 'nominee' has more than one meaning, including that of a person who is named or designated as the recipient of a grant or conveyance.
3. This court on appeal does not weigh conflicting evidence and will not disturb findings made by the trial court which are shown by the record to be sustained by substantial competent evidence.
4. An accord and satisfaction is a contract between debtor and creditor to settle a disputed claim by some performance other than that which is due, and to be effective both the accord, and the satisfaction, much be established. must be established. is an affirmative defense and must be pleaded as such.
6. Ordinarily, issues which have not been raised or presented in the trial court will not be considered for the first time on appeal.
7. A cause of action must exist and be complete prior to commencement of a lawsuit, and an action brought prematurely is generally subject to dismissal where a proper objection is made thereto.
8. Where an action has been commenced prematurely, the defect may be cured by filing an amended or supplemental petition after the cause of action has accrued, unless the amended petition changes the cause of action.
9. The record is examined in an action to recover money alleged to be due under a written agreement and for reasons stated in the opinion it is held the trial court did not err in entering judgment for the plaintiff.
William E. Enright, of Scott, Quinlan & Hecht, Topeka, argued the cause, and Robert D. Hecht and Jack A. Quinlan, Topeka, were with him on the brief for appellants.
Arthur Palmer, of Goodell, Casey, Briman, Rice & Cogswell, Topeka, argued the cause, and Glenn D. Cogswell, Topeka, was with him on the brief for appellee.
This is an action to recover money alleged to be due under a written contract. The trial court entered judgment in favor of the plaintiff, L. V. Thompson, and the defendants, Meyers and Reust, have appealed. The parties will be designated either as plaintiff and defendants, or by name.
The defendants are real estate operators who, in the year 1966, were engaged in promoting a shopping area in Wyandotte County. In furtherance of this design they entered into a contract on May 2, 1966, with the Alta Investment Co., Inc., hereafter called Alta, for the purchase of a 33 acre tract of land at a price of $370,000, payable as follows: $7,000 on the signing of the contract, $8,000 on or before May 9, 1966, $12,775 on or before June 15, 1966, and the balance of $342,225 at the time of closing, which should be no later than August 1, 1966. We may conclude from the record that at this time the defendants were dickering with K-Mart for a lease of a portion of the proposed shopping center and were hoping to close the K-Mart deal prior to August 1, 1966.
Meyers and Reust made the $7,000 down payment but apparently needed financial assistance with respect to subsequent payments, and they turned to Thompson, a Topeka capitalist, for help. On May 9, 1966, the date on which the second payment was due Alta, the defendants signed an agreement with Thompson which has given rise to this lawsuit. Omitting formal parts and the whereases, the contract provides:
'1. Thompson does hereby agree that he will, upon the execution of this agreement, deliver unto the said Meyers and Reust, the sum of Eight Thousand and No/100 ($8,000.00) Dollars, which amount is to be paid to the said Alta Investment Co., Inc. for the purpose of keeping the above said Contract to Sell Real Estate in full force and effect.
'2. Thompson further agrees that he will pay an additional Twelve Thousand and No/100 ($12,000.00) Dollars to the said Meyers and Reust on or before the 15th day of June, 1966 upon the request of Meyers and Reust.
'3. As consideration for said payments by Thompson, Meyers and Reust do hereby agree that in the event they, or their nominee, purchases said real estate, they will pay to Thompson, a sum equal to the amount of money which Thompson has paid to them under the terms of this agreement, plus the sum of Thirty Thousand and No/100 ($30,000.00) Dollars. Said amount shall be paid on or before three (3) years from the date that Meyers and Reust, or their nominee, obtain title to the above said real estate.
'4. In the event Meyers and Reust, in their sole discretion, determine that it would not be advisable to purchase said real estate, then it is agreed that they will repay Thompson a sum equal to one-half of the amount which Thompson pays to them under the terms of this contract. Said amount shall be paid no later than three (3) years from the date that Meyers and Reust notify Thompson that they have determined not to purchase said real estate.
(Emphasis supplied.)
Thompson delivered the $8,000 payment to the defendants on May 9, as was agreed upon, but he did not supply the additional $12,000 which was due on the Alta contract on or before June 15, 1966, it being his contention that this amount was never requested of him by the defendants. This is one of the points in dispute and we will refer to it later on.
The record reflects that during the first week of June, 1966, the defendants entered into negotiations with three Texans, Jack Coogan, Roland E. Walters and W. Floyd Clark, all of Houston, to whom we will collectively refer as the Coogan group. The negotiations culminated in the Coogan group making a loan of $12,775 to Meyers and Reust on June 14, and in Meyers and Reust granting the Coogan group an option to purchase their interest in the Alta contract for the sum of $132,775 less the amount of the loan. This transaction is evidenced by a letter from Meyers and Reust to Roland Walters, Trustee, dated June 14, 1966. On July 21, 1966, the option was extended and modified in certain particulars which are of little or no consequence here.
A letter finalizing the details regarding the Coogan group's option was sent by Meyers to Walters under date of September 15, 1966. Pertinent portions of this document will be examined in more detail hereafter.
A warranty deed was duly executed by Alta Investment Co., Inc. on September 19, 1966, conveying the Wyandotte tract to Jack Coogan and Roland E. Walters.
On June 12, 1969, Thompson filed the present lawsuit alleging that under the terms of his contract with Meyers and reust they became indebted to him in the sum of $38,000; that $15,000 of that amount had been paid; and that $23,000 was still owed him. The action was tried to the court and Thompson was awarded judgment for the full amount of $23,000.
The major thrust of the defendants' arguments on appeal may be divided into four separate parts.
Their first contention is that neither they nor their nominee purchased the shopping center property from Alta, and hence their obligation to Thompson was simply to pay him what the contract provided in case Meyers and Reust decided not to buy the property, namely, one-half of what Thompson had put up, or $4,000. The defendants argue that Coogan and Walters were not nominees of Meyers and Reust within the meaning of their contract with Thompson but were their assignees, and that Coogan and Walters purchased the Wyandotte property from Alta after Meyers and Reust had assigned to them their interest in the Alta contract.
The trial court rejected this contention and held as a matter of law that Coogan and Walters were the nominees of Meyers and Reust in their purchase of the real estate from Alta. The court reasoned that in order for a nominee of Meyers and Reust to purchase the property from Alta, Meyers and Reust would be required to assign their interest in the contract to their nominee, and that this was within the contemplation of the parties who were signatories both to the Alta and to the Thompson contracts.
We agree with the trial court's conclusion on this point. The sense in which the term 'nominee' is used in the two contracts is to be ascertained from the intention of the parties as it may be expressed in the instruments as a whole. (See cases in 2 Hatcher's Kansas Digest (Rev.Ed.) Contracts, §§ 39, 42.)
The first paragraph of the contract between Alta and Meyers and Reust reads:
'THIS CONTRACT, made and entered into this 2nd day of May, 1966, by and between ALTA INVESTMENT CO., INC., a Kansas corporation, hereinafter referred to as 'Seller' and KEITH L. MEYERS and FRED W. REUST, or their Nominee, hereinafter referred to as 'Buyer."
Thus the defendants' nominee is tied to the contract as a buyer, a buyer designated by Meyers and Reust should they decide not to...
To continue reading
Request your trial
-
Kim v. Comptroller of Treasury
...660 So.2d 1059, 1060 (Fla.Dist.Ct.App.1995); Hindman v. Reaser, 246 Iowa 1375, 1382, 72 N.W.2d 559, 563 (1955); Thompson v. Meyers, 211 Kan. 26, 33-34, 505 P.2d 680, 686 (1973); Tanzilli v. Casassa, 324 Mass. 113, 115, 85 N.E.2d 220, 221 (1949); Boydstun v. Pearson, 239 Miss. 479, 481-482, ......
-
Neonatal Prod. Grp., Inc. v. Shields, Case No. 13–2601–DDC–KGS
...the claim by some performance other than that which is due. Satisfaction takes place when the accord is performed." Thompson v. Meyers , 211 Kan. 26, 505 P.2d 680, 685 (1973) (quoting Lighthouse for the Blind v. Miller , 149 Kan. 165, 86 P.2d 508, 508 Syl. ¶ 1 (1939) ). The Kansas Supreme C......
-
Cornwell v. Jespersen, 57366
...be construed and its legal effect determined by this court on appeal. Hall v. Mullen, 234 Kan. 1031, 678 P.2d 169. In Thompson v. Meyers, 211 Kan. 26, 505 P.2d 680 (1973), we held in order for an accord and satisfaction to be effective, both the accord and the satisfaction must be establish......
-
Landmark Nat. Bank v. Kesler
...rights beyond those of a principal whom the nominee serves. In its opinion below, the Court of Appeals cited Thompson v. Meyers, 211 Kan. 26, 30, 505 P.2d 680 (1973), which provides the only discussion in Kansas of the legal significance of a "In common parlance the word `nominee' has more ......