Wea Gas

• Decision Date: 05 January 1895
• Citation: 54 Kan. 533,38 P. 790
• Parties: THE WEA GAS, COAL AND OIL COMPANY v. THE FRANKLIN LAND COMPANY
• Court: Kansas Supreme Court

38 P. 790

54 Kan. 533

THE WEA GAS, COAL AND OIL COMPANY v. THE FRANKLIN LAND COMPANY

Supreme Court of Kansas

January 5, 1895

Error from Miami District Court.

THIS is a continuation of the litigation between these parties which was before this court in 1890, and which is reported in 43 Kan. 518. After the reversal of the judgment, the cause was remanded to the district court, where another trial was had and it was then stipulated that the findings of fact made by the court, and which are set forth in the opinion in Land Co v. Gas Co., 43 Kan. 518, except finding No. 11, were admitted as facts in this case. The court then made the following additional findings of fact:

"1. That on the 23d day of July, 1886, at the time of the execution of the said lease by Robert Dunn to the defendant company, said Gertrude Dunn, wife of Robert Dunn, knew of the execution of the lease by Robert Dunn; that she came to town that day with her husband, for the purpose and with the intention of signing said lease jointly with her husband.

"2. She did not go to the office of the notary public with the husband at the time of the signing. Her husband was told at that time by the notary that it was unnecessary for her to sign the lease.

"3. Mrs. Dunn never saw the lease or heard the lease read, and never at any time knew its terms and conditions. She did know there was a lease and what it was for.

"4. At the time of the execution of the lease, she had no consultation with any officer or representative of' the defendant company concerning the lease, and never at any time made any contract or signified any consent touching the lease with any officer or representative of the defendant company.

"5. Mrs. Dunn knew at the time of the execution of the lease that her husband was a member of the defendant company.

"6. It was the custom of Mrs. Dunn to leave the details of business with her husband.

"7. I find that Mrs. Dunn consented to the lease at the time it was executed, in the sense that she was ready to sign it if requested; that while she did not know the exact terms of this lease, she assented to the giving of such a lease, the general nature of which she did not understand.

"8. Such consent as mentioned in finding No. 7 was made to her husband only.

"9. What knowledge Mrs. Dunn had of the lease was derived from communications with her husband, and all that she did regarding it was done with her husband.

"10. That since the execution of the lease, Mrs. Dunn has never made any objections to the same.

"11. I find that there was but one lease signed by Mr. Dunn to the defendant company, and that such lease and the lease referred to in the Wadsworth contract are identical.

"12. I find that the deed from Dunn and wife to I. A. Boicourt was made in pursuance of the Wadsworth contract of sale, and that in such deed there was a mutual mistake in not excepting this lease from the terms of general warranty in said deed. The deed was made to I. A. Boicourt as an individual."

As a conclusion of law, the court found in favor of the land company, holding that the lease was null and void, and adjudged that it should be vacated and set aside. The Gas Company complains of that ruling, and asks for a reversal.

Judgment affirmed.

Hiram Stevens, for plaintiff in error.

H. C Mechem, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

There is little in the additional findings of fact to change the view that was taken when the case was here before. (Land Co. v. Gas Co., 43 Kan. 518.) It appears that there was but one lease executed by Dunn, and that that one and the lease referred to in the Wadsworth contract are identical. And it further appears that the officers of the land company had knowledge of the execution and delivery of a paper purporting to be the lease executed by Dunn to the oil company. It is shown beyond question, however, that no...