Wheeler, Kelly & Hagny Inv. Co. v. Curts

• Decision Date: 08 April 1944
• Docket Number: 36002.
• Citation: 158 Kan. 312,147 P.2d 737
• Parties: WHEELER, KELLY & HAGNY INV. CO. v. CURTS.
• Court: Kansas Supreme Court

147 P.2d 737

158 Kan. 312

WHEELER, KELLY & HAGNY INV. CO. v. CURTS.

No. 36002.

Supreme Court of Kansas

April 8, 1944

Rehearing Denied June l6, 1944.

Syllabus by the Court.

In action on written contract for sale of realty, which contract was "in substitution" of all previous agreements testimony of prior oral agreements respecting consideration to be paid for the realty was properly excluded.

Under "parol evidence rule," parol or extrinsic evidence is not admissible to and to, subtract from, vary or contradict judicial or official records or documents, or written instruments which dispose of property or are contractual in nature, and which are valid, complete unambiguous and unaffected by accident or mistake.

In an action upon a written contract for the sale of real property the testimony of prior parol agreements respecting the amount to be paid by the vendee for the property, and which varied from the amount stated in the written contract, was properly excluded.

Appeal from District Court, Sedgwick County, Division No. 4; Isaac N. Williams, Judge.

Action by the Wheeler, Kelly & Hagny Investment Company against Mary C. Curts on a written contract for the sale of realty. From a judgment for plaintiff, the defendant appeals.

Robert Stone, of Topeka (James A. McClure, Robert L. Webb, Beryl R Johnson, and Ralph W. Oman, all of Topeka, on the brief), for appellant.

Oliver A. Witterman, of Wichita (Wilbur H. Jones, of Wichita, on the brief), for appellee.

HARVEY Justice.

This was an action upon a written contract for the sale of real properly. A trial by the court resulted in judgment for plaintiff. Defendant has appealed and contends that the court erred in excluding testimony of a prior oral agreement respecting the consideration to be paid for the property.

The petition, filed April 16, 1942, alleged that on July 15, 1941, plaintiff and defendant entered into a written contract, a copy of which was attached, by the terms of which plaintiff agreed to sell to defendant certain real property in Wichita and convey the same by warranty deed and furnish abstract showing merchantable title, and defendant agreed to purchase the property and to pay as the purchase price therefor the sum of $1,000 in payments as follows: $25 August 15, 1941, and $25 on the 15th day of each month for each of four months thereafter, and to pay the balance of the purchase price, $875, on the 15th day of January, 1942, and to pay on the date of the agreement all delinquent taxes due on the property, except for 1940, and to pay those at a later date, and to pay future taxes. The written agreement provided for the execution of the papers and the deposit of them with a designated trust company, where the payments were to be made, and it recited: "This agreement in substitution to any prior agreement between the parties hereto." The petition alleged that defendant had made the five payments of $25 each and paid the delinquent taxes, except for 1940, but had failed, neglected and refused to pay the $875 due on January 15, 1942, and the taxes due for 1940 and subsequent. The contract provided that if defendant failed to make any of his payments provided in the contract for a period of thirty days, then defendant's rights under the contract should be cancelled and payments previously made should be retained by the first party by way and in lieu of rent and as liquidated damages. The prayer was that the court determine the amount due plaintiff under the contract; that the defendant be given a time within which to pay the amount found due, and in default thereof the rights under the contract be forfeited as provided therein, and that plaintiff have costs and other proper relief.

The answer admitted the relation of the parties and that they entered into the contract, a correct copy of which was attached to the petition. Defendant denied that she owed anything under the contract and alleged that she purchased the property in 1925 and since then has occupied the place as her home; that in 1926 she placed a mortgage thereon for $3,500 to plaintiff, which was sold to the Royal Union Life Insurance Company; that in 1931 the mortgage was reduced $500 and a new mortgage given to the insurance company; that the insurance company became insolvent, and that the mortgage last above mentioned was purchased by the plaintiff "for a nominal sum"; that thereafter plaintiff instituted foreclosure proceedings against defendant; that pending that action plaintiff offered and agreed to settle said indebtedness for the sum of $1,000; that the agreement was made about December, 1933, and renewed about February, 1936, and that since then defendant has paid plaintiff thirty-six payments of $25 each and one of $50; that the agreement was thereafter reduced to writing on July 15, 1941, and is the agreement set out in plaintiff's petition; that plaintiff also received from defendant $100 insurance collected for wind storm damage to the premises, and that the amount due plaintiff has been fully paid.

The reply was a general denial.

The trial was in April, 1943. Evidence on plaintiff's behalf sustained the allegations of its petition. Defendant and her son, who transacted some of her business, gave testimony substantially as follows: That when plaintiff was foreclosing the mortgage in 1933 defendant asked one of plaintiff's officers if plaintiff would settle the indebtedness for $1,000, and he smiled and said: "Bring in the money." There was no evidence that the money was taken in. The witness further testified that the officers of plaintiff expressed dissatisfaction with the state's moratorium policy and also with the redemption period which defendant was exercising and stated that any arrangement would have to be of a nature that would preclude the possibility of defendant taking advantage of such statutes. On March 2, 1936, some kind of a contract was signed between them. This contract was not pleaded, nor was it introduced in evidence, hence its specific terms are not shown by the record. It is spoken of as "the $2500.00 purchase contract." Defendant's son testified that it was arranged in that sum for the purpose of safeguarding plaintiff against the possibilities of a moratorium or redemption period. The testimony is that under that contract $50 was paid on March 2nd and later $25 practically each month to December, 1938. Nothing was...