286 P.2d 178 | Kan. | 1955
This action, as originally commenced, was for the foreclosure of a mechanic’s lien. The present appeal involves only liabilities as between the defendants Van Patten and The Anchor Savings and Loan Association, as later set forth.
In a preliminary way it may be stated that the defendant Thomas C. Tudor, Jr., owner of certain real estate in Kansas City, Kansas, was engaged in the construction of a residence and he and his wife had mortgaged the real estate to the Association to secure their note for $11,500. Although the contract therefor is not included in the abstract it is undisputed that on December 17, 1947, C. F. Van Patten and D. F. Van Patten, his wife, entered into a contract with the Tudors for the purchase of the real estate for a total consideration of $15,000 made up of a down payment of $1,000, the assumption of the mortgage of $11,500, and a final payment to be later made of $2,500. On March 15, 1948, the Van Pattens paid the balance to the Association for distribution to the parties entitled and went into possession. Various mechanic’s lien statements were later filed, and we are told that the amounts thereof were compromised and the claims paid. Ackerman-Swinney who had filed a mechanic’s lien statement refused to compromise their claim and commenced the instant action against the Tudors and the Association. Other lien claimants and the Van Pattens were made parties defendant. As the result of a trial, the trial court on March 27,1950, rendered a judgment that the Association held a first lien on the real estate; that Ackerman-Swinney have judgment against the Tudors for $850 and interest and a lien on the real estate and that the lien be foreclosed and the proceeds applied to: 1. The costs; 2. The judgment of the Association; 3. The judgment of Ackerman-Swinney; and 4. Any balance to be paid into court to await its further order. No party in interest appealed from the above judgment.
On March 29, 1950, the Van Pattens filed a cross petition against the Association, and later filed an amended cross petition, in which they alleged, in substance, that on December 27, 1947, they entered into a contract of purchase through their agent and paid $1,000 on the contract; that the building was being constructed, and that the seller was to complete construction, convey the property and give possession not later than February 10,1948; that they were informed
As the result of a trial of the issues between the Van Pattens and the Association the court found the Association should furnish the Van Pattens with an abstract of title; that the Van Pattens should be denied judgment against the Association for $984 (amount they paid Ackerman-Swinney); that the Association should be denied judgment against the Van Pattens .for $3,743.81 (amount it paid
The errors specified in appellants’ abstract were that the trial court judgment the Association was entitled to any relief was not supported by any substantial competent evidence; that the judgments rendered were contrary to the evidence, and that the evidence presented revealed there was no meeting of the minds of the appellants and appellee, which resulted in damage to the appellants. The appellants’ belated motion to amend the specification of errors to include the ruling on their motion for a new trial was allowed.
In their brief appellants do not include any statement of the questions involved as required by Rule 6 (3) (b) of this court. Their argument covers the following. They first state the evidence shows no substantial evidence to support the trial court’s findings and judgment, and therefore the judgment was erroneous, but they do not point out any failure of proof necessary to sustain the judgment.
Appellants next contend that the evidence discloses the Association was the agent of both appellants and the seller of the prpperty, point out evidence which they say is undisputed and argue that as an agent for both parties the appellee owed a high degree of fidelity, care and diligence to both parties, and that as an agent it was its duty to act in utmost good faith, and not to act for its own benefit. They further contend the evidence shows the appellee made misrepresentations to the appellants while acting as their agent or failed as such agent to disclose to appellants all of the facts. We here note that appellee questions the right of appellants to raise the question of agency here, for the reason such a contention was not raised in the trial court. We shall not resolve that dispute as we cannot discern from the record whether the objection is good or not.
We find it unnecessary to take up and discuss tiie rules of law relied on by the appellants, for assuming the validity of the legal principles contended for, the premise for their application is lacking. Without attempting a comprehensive review of the evidence it may be said that appellants had agents of their own choosing prior to the time they were advised to pay the remainder of the purchase price to the appellee for distribution; that thereafter they were represented by three attorneys, one succeeding the other, although there may have been some intervening times when they had
. The specification that the minds of the parties did not meet is not referred to in appellants’ brief and needs no comment.
Appellants’ motion for a new trial included as grounds therefor abuse Of ¡discretion by the trial court, erroneous rulings, and that the judgment was in whole or in part contrary to the evidence. They present no separate argument concerning the trial court’s denial of the motion, and the claimed error might well be considered as abandoned. We feel impelled to say, however, that the record as abstracted utterly fails to disclose any abuse of discretion by the trial court or any erroneous rulings. While there was some dispute in the evidence, an examination of the record as abstracted discloses substantial evidence to support the judgment.
The judgment of the trial court is affirmed.