West v. Prairie State Bank

• Decision Date: 27 January 1968
• Docket Number: No. 44845,44845
• Citation: West v. Prairie State Bank, 200 Kan. 263, 436 P.2d 402 (Kan. 1968)
• Parties: Mamie Hall WEST, Appellant, v. The PRAIRIE STATE BANK, Appellee.
• Court: Kansas Supreme Court

Page 402

436 P.2d 402

200 Kan. 263

Mamie Hall WEST, Appellant, v. The PRAIRIE STATE BANK, Appellee.

No. 44845.

Supreme Court of Kansas.

Jan. 27, 1968.

Syllabus by the Court

1. In an action to recover damages for the alleged breach of a written contract the trial court sustained a motion for summary judgment in favor of the defendant upon the pleadings, answers to interrogatories and admissions on file, and on appeal it is held: The record discloses no genuine issue as to any material fact and the defendant is entitled to judgment as a matter of law.

2. A motion for summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (K.S.A. 60-256(c).)

3. Where two or more instruments are executed by the same parties contemporaneously, or even at different times in the course of the same transaction, and concern the same subject matter, they will be read and construed together so far as determining the respective rights and interests of the parties, although they do not in terms refer to each other.

4. An agent cannot deal with the subject matter of the agency for his own profit or advantage.

5. The construction of a written instrument is a question of law which can be determined on a motion for summary judgment.

John B. Wooley, Wichita, argued the cause, and Marvin J. Martin, Donald G. McFerson and Jimmie E. Grey, Wichita, were with him on the brief, for appellant.

J. B. McKay, Eldorado, argued the cause, and James B. McKay, Jr., Eldorado, was with him on the brief, for appellee.

SCHROEDER, Justice.

This is an action by Mamie Hall West, plaintiff, to recover $100,000 damages for the alleged breach of a contract between the plaintiff and the Prairie State Bank, defendant. The trial court sustained the defendant's motion for summary judgment and the plaintiff has duly perfected an appeal.

The overall question presented is whether on the facts in this case the trial court erred in sustaining the defendant's motion for summary judgment.

The following undisputed facts appear from the pleadings, answers to interrogatories and admission on file.

On the 18th day of April, 1961, prior to the marriage of Mamie Hall West (plaintiff-appellant) to L. A. West, they entered into the antenuptial agreement referred to in the case of In re Estate of West, 194 Kan. 736, 402 P.2d 117, a copy of which was made a part of the record in the trial court and admitted by Mamie.

On the 23rd day of April, 1961, Mamie and L. A. West were married. On the 24th day of April, 161, L. A. West executed a will and Mamie executed the consent thereto mentioned in the aforesaid opinion, a copy of which was made a part of the record in the trial court and admitted by Mamie.

The antenuptial agreement, among other things, provides in paragraph (c):

'* * * that upon the death of either, the survivor shall not have and will not assert any claim of right, title or interest under the laws of any State because of such survivorship in or to the property left by the other except as provded in paragraph 'a' above.'

The will in paragraph VII made provision for Mamie in full compliance with paragraph (a) of the antenuptial agreement. On the 19th day of June, 1962, Mamie and L. A. West executed the following authorization at the Prairie State Bank on the bottom of a 'signature card:'

'Individual Account

'I hereby authorize the signature appearing below to transact any and all business in my behalf with The Prairie State Bank, pursuant to the regulations on this card.

/s/ Mrs. L. A. West

Authorized Signature

/s/ L. A. West

Depositor'

6/19/62

(Emphasis added.)

In answer to an interrogatory Mamie said: 'When it became apparent to Plaintiff that L. A. West probably was not going to recover and that he had not honored his agreement to take care of her, she requested Defendant to honor a check to herself in the amount of $150,000.00 and, upon Defendant's advice, reduced said check to $100,000.00, and wrote and presented the same as advised by Defendant. This check was cashed by Defendant, which agreed to hold the funds in escrow for Plaintiff under the terms of an Escrow Agreement as set forth in Exhibit 'A' attached to Plaintiff's Petition.' This event occurred on the 4th day of August, 1962.

In answer to an interrogatory Mamie also said she does not 'claim to have had any authority to draw the $100,000 check on the account of L. A. West other than the signature card,' hereinabove quoted.

The 'escrow agreement' attached to the plaintiff's petition as Exhibit 'A' reads:

'Augusta, Kansas

August 4, 1962

'The Prairie State Bank

Augusta, Kansas

Gentlemen:

'In as much as you have refused to pay a check to me in the amount of $100,000.00 drawn on the account of L. A. West with your bank, on which I am authorized to sign and to which I believe that I am rightfully entitled, as his wife, but to which there might be some controversy, I am hereby requesting that you hold these funds for me in escrow until after the death of L. A. West and for one year after the closing and full settlement of his estate, after which time it is to be paid to me unless before such time you are directed by the court, or the executor of his estate to return it to the account of L. A. West or to his estate.

Yours very truly,

Mamie West

(Mrs. L. A. (Mamie) West)'

(Emphasis added.)

In answer to an interrogatory Mamie said the only consideration for the $100,000 check was L. A. West's promise that he 'would take care of her' if Mamie would marry him, and the 'care, comfort and assistance' she gave him, both before and after the marriage.

On the 12th day of July, 1965, the executors made wirtten demand upon the Prairie State Bank for the payment to it of the $100,000, and mailed a copy of the demand to Bond and Bond, El Dorado, Kansas, who were then Mamie's attorneys. Her attorneys advised Mamie of such demand on the 30th day of July, 1965.

The Prairie State Bank delivered the $100,000, which had been held in the form of a cashier's check, to the executors in the estate of L. A. West on the 22nd day of July, 1965.

When Mamie's attorneys were advised of the demand made by the executors in the estate of L. A. West upon the Prairie State Bank, Mamie was then out of town on a trip and did not learn what had occurred until she returned home on the 30th day of July, 1965. She then found a letter from the Prairie State Bank dated July 22, 1965, stating in part: 'We are, today, delivering these funds to these executors and felt you should have notice that it was necessary that we comply with their demands.'

It is conceded the Prairie State Bank and the executors in the estate of L. A. West had entered into an agreement whereby the bank paid the $100,000 without interest to the executors of the estate, and the executors agreed to pay the $100,000 plus interest at six percent back to the bank if it were called upon to make payment to Mamie. This agreement was subsequently approved by the probate court without public notice or notice to Mamie.

Reference was made to the $100,000 here in controversy in the case of In re Estate of West, supra.

The appellant contends this case is based solely upon the appellee's breach of its fiduciary duty and agreement to carry out its promises contained in the 'escrow agreement' dated August 4, 1962. On this premise the appellant complains the trial court erred in requiring her, over objection, to answer certain interrogatories, which sought to ascertain whether or not Mamie had authority to write the check, whether or not Mamie was entitled to the $100,000, and whether or not there was consideration for the $100,000.

The appellant argues the answers called for by these interrogatories were not relevant or material, and her objections thereto should have been sustained.

We think the primary premise of the appellant that the 'escrow agreement' was a separate and distinct transaction is untenable.

A refusal to recognize the acts of the parties prior to the time the 'escrow agreement' was signed, on the ground that they are not material or relevant to the issues raised by the pleadings, simply ignores the issues which were raised by the answer.

The 'escrow agreement' cannot be isolated. What occurred at the bank on the 4th day of August, 1962-the presentation of the check, the bank's refusal to cash it, the execution of the 'escrow agreement,' and the issuance of the cashier's check-was a single transaction. It would be improper for the court to look only to the 'escrow agreement' in determining the appellant's right to the money. This was not a case where the appellant bought a cashier's check with her own money and entered into an 'escrow agreement' pertaining to her own property. The check was never 'cashed.' The 'escrow agreement' on which the appellant relies recites that the bank has 'refused to pay a check to me * * * drawn on the account of L. A. West.' The check was a mere device to transfer $100,000 from the account of L. A. West into a cashier's check. The appellant at no time had possession or control of any of this money.

It is well settled in this jurisdiction that where two or more instruments are executed by the same parties contemporaneously, or even at different times in the course of the same transaction, and concern the same subject matter, they will be read and construed together so far as determining the respective rights and interests of the parties, although they do not in terms refer to each other. (In re Estate of Cooper, 195 Kan. 174, 178, 403 P.2d 984, and authorities cited therein.)

It cannot be said on the basis of the record here presented the trial court erred in overruling the appellant's objections to the various interrogatories propounded by the appellee.

The appellant contends the...