*1 44,252 No. Bradshaw, Appellee. v. A. L. Reynard, Appellant, M. Jessie 1011) (409 2dP. Opinion January filed Michaud, cause, Cranmer, Wichita, argued L. Gerald Russell Fisher, Syrios, Wichita, with him on the Orval all of were L. and M. William appellant.
brief for the Powers, cause, George Wichita, argued B. Sawatzky, Carl Gerald Foulston, Smith, Eberhardt, Carter, R. C. Malcolm F. Stuart Robert T. John Miller, Harris, Partridge, Donald L. N. M. Richard Siefkin, Robert Robert C. Howard, Cordes, Woodin, Stout, L. Ronald Robert L. Charles Mikel K. J. Frick, Wichita, Badger, Benjamin Langel, Phillip S. all of were with C. appellee. him on the brief for the of the court was delivered opinion in- Harman, damages personal C.: This was an action for *2 from collision in which juries resulting an automobile defendant denied and and settlement liability alleged of prior jury the claim. A verdict the settlement. Plaintiff appeals. upheld summarized, Highly plaintiff’s petition pertinent part alleged 18, 1961, her on November had automobile stopped plaintiff aat at a street in Wichita and was stoplight intersection negligently defendant, hit in an and by rear automobile driven thereby caused to suffer and in the personal injuries damages sum of $77,943.30, which recovery. she sought Defendant’s answer alleged that at time and he question place following an into light intersection when the traffic green whereupon and without plaintiff suddenly signal stopped her car her; defendant to causing into defendant denied bump negligence on his and part claimed the of guilty negligence in collision; causing the defendant denied and damages further al- leged that a compromise settlement into was entered 13, 1962, on December plaintiff executed written wherein instru- ment releasing defendant all of consideration of the liability sum her, of which amount was tendered to and defendant prayed that the settlement agreement be enforced. her reply admitting
Plaintiff filed she a written on 13, alleged but she she December was not considera- tion stated at the of the therein time execution thereof and there- effect; fore the release void and no she further alleged that the next return day demanded the of said release from de- fendant’s did company insurance but not receive it and instead received the check which she company’s insurance returned on 19, 1962; December further that there was a mistake mutual of fact as to plaintiff’s condition and defendant at the time of the of the signing release and was therefore void. was as follows: “RELEASE OF ALL CLAIMS “Know All Men These Presents: Undersigned, being age, “That of lawful the sole consideration of ($2,500.00) Hundred and Two Thousand Dollars Five Dollars to the no/100 undersigned paid, receipt hereby acknowledged, in hand whereof do/does my/our/its heirs, executors, hereby administrators, and for successors and acquit assigns release, discharge his, and her, forever A. L. Bradshaw and their, servants, successors, agents, heirs, executors, or its and administrators partnerhips and from firms, corporations, persons, associations or all other costs, damages, rights, demands, action, actions, any causes of claims, and all undersigned whatsoever, compensation which service, expenses and loss of way or in may on account of accrue hereafter now which or has/have unknown, and unforeseen foreseen growing and and known out of all consequences damage property personal and bodily injuries and and accident, casualty which or event resulting result from the thereof or to Kellogg November, & day or near the 18th occurred on or about Broadway, Wichita, Kansas. compromise of a agreed is the that this settlement “It is understood and disputed claim, is not to he con- and that the made doubtful and parties hereby party liability strued as an admission of merely released, deny liability intend and therefor and that said releasees litigation buy peace. avoid their declare!s) represent!s) injuries undersigned hereby “The may permanent progressive recovery sustained are or and that therefrom making uncertain indefinite and this Release understood agreed, undersigned wholly upon undersigned’s judg- rely(ies) that the nature, extent, knowledge ment, belief and effect and duration said *3 injuries liability upon any and therefor and is made without reliance state- representation party parties hereby repre- ment or or released or their any physician by surgeon employed. sentatives or them by undersigned declare!s) represent!s) promise, “The further and that no agreement expressed inducement or not herein has been made to the under- signed, agreement and that this contains Release the entire between the hereto, and that the terms of this Release are contractual and not a mere recital. undersigned foregoing fully “The has read the under- and IT. stands “Signed, day December, sealed delivered this and 13th Signing “Caution: Read Before Below Reynard LS M. “Jessica Rodgers Floran A. “/s/ “Witness Wendling Marsha A. “/s/ “Witness Lelia C. “/s/ Jones “Witness “[Acknowledgment].” entered into stipulation, conference die parties
At pretrial of which pertinent parts provided: signed by joint M. “4. The release as exhibit introduced Jessie Reynard 13, 1962, given Uhland. Wendell December Reynard $2,500.00 recited “5. M. did not receive the Jessie on the date and at the time she the release. Company Inspection Adjustment and Wendell Uhland of the Universal “6. Reynard against for the adjusting L. Bradshaw the claim of M. A. Jessie Company.
Allstate Insurance Reynard by through attorney “7. On December her M. Jessie Michaud, Adjustment Gerald L. contacted Wendell Uhland of the Universal Inspection Company $2,500.00 and notified Uhland Wendell accepted by requested Reynard would not be M. and further Jessie release be returned. 17, 1962, Lippe “8. On December of the Allstate Vander Insurance John Company $2,500.00 sent mail to the its check the amount of consideration in the release. tendered recited 18, 1962, Reynard “9. On December mail M. received Jessie Company following check of the Allstate Insurance and the date Lippe Company.” the same of the Allstate mailed Vander Insurance John No order further pretrial defining issues was made, but after the trial had commenced moved for an order based upon and the pleadings stipulation that the release be held as a matter of law to be not binding upon and no defense cause of action. This motion was overruled and jury trial was had with evidence received and con on at pro matters in a jury brought issue. special verdict answered a special as follows: “We, Jury, impaneled case, and sworn in the above-entitled do our oath find that the binding, release contained in Exhibit No. 10 is and assess recovery $2,500.00. Plaintiff’s
“Special Questions you agreement was, “1. find What do any, Q. if M. Jessie Reynard Uhland, repersentative and Wendell Company, Allstate Insurance Reynard as to when M. would receive the settlement check? Jessie “A. Receive check mail.” assigns Plaintiff error first that the trial court failed to sustain that, her motion the release be held as a matter of law to be not her and binding upon no defense to her cause of action. Plaintiff there was a argues failure complete of consideration for the release *4 when the not was execution. Defendant urges that the release a constituted bilateral compromise settlement of the claim and that it became effective immediately, it being further understood the by the plaintiff and insurance adjuster for acting the defendant that consideration would be paid by check through the mail within a few days. are not
We cited to nor has our research disclosed of our own cases in directly point. Isolated statements of general law be found in may some which at first blush may seem pertinent but factual different situations render them of no value here. The instrument in was question entitled “Release of All Claims.” and, such, Releases as have been may compared be of different kinds in relinquishment with and methods used from other distinguish^ 629-631; 1-5, S., Release, pp. (76 settlement of claims C. §§ J. Release, 1-4, made 45 Am. but the distinctions Jur., 674-677) pp. §§ clearcut, are or neces- helpful not not always particularly it is used, and varied. go to sary many into the definitions which are The from legal solely of a document not to be determined effect its first name into account. The although that be taken may instrument, of question, the construction is, to be gleaned what the intention the This is parties? was of intent, from the itself that expresses instrument and where The matter of inquiry subject ended. claim which was instrument, was for an being liability, unliquidated one tort claims, the and uncertain As most automobile collision amount. of damage and the nature extent were liability honest subject and the whole matter was one to possible issues Settlement an on be- disagreement. adjuster was undertaken by of the negotia- half of defendant’s insurance carrier. Culmination tions was the execution and instrument delivery question. matter, is, It recited the nature of that subject the collision November growing claim out of disputed definite and were assented they The terms of the settlement were Plaintiff’s assent is evidenced by parties. by to acts of both ihe signature by delivery her and further the instrument that defendant back of adjuster; by acceptance the instru- after ment The instrument was signature. complete plaintiff’s every way payment be made. The except only remained fact the released being instrument was not signed party of no effect on both significance determining binding its face it not intended to be where the shows on its instrument single than release. more signed by the No party obtaining document, name, binding effect required whatever should intent in the instrument. appears settlement clearly when Plaintiff an offer merely so-called urges on her until settle her and that it remained revocable at will part made. more than mere actual We think there was offer to settle on the of either part party. presentation one claim authorized settle the could be defendant, construed as an offer act in the instrument signing delivering as an acceptance *5 say effect to be in would contention
thereof. To accept plaintiff’s pay to proposition of defendant’s that plaintiff’s acceptance if offered when money to accept amounted to an agreement had that plaintiff any agreement pay, and not to accept agreed previously had though even right acceptance to refuse further per- short, without acceptance that plaintiff’s accept; in- the parties think all. We nothing formance amounted it matter of law As a ceremony. more than a hollow just tended die and who made made the offer would make no difference who a definite proposi- there What is is that acceptance. essential a release shows words the tion both In other accepted by parties. mutual resulting mutual meeting parties minds of it so in- promises and think the release on its face shows we furnishes claim disputed tended them. The of a Contracts, S., p. C. good consideration a contract (17 § J. contract, and we Here then are all the elements of valid 824). have enforced it. The no doubt either of the could have parties law favors contracts in settlement of matters disputed avoidance of litigation ought and it not circumscribe means carrying such settlements into effect. until after
The fact the was not tendered a few days the instrument not constitute a material the execution of would such rescind the con- failure of consideration as would entitle not performing tract. Mere a contract is such substantial delay rescission, breach, delay unless the is such as to warrant justifying not intended. Performance performance conclusion S., time a reasonable would be sufficient. C. Con- (17A within J. tracts, 422, face it 516-521.) instrument on its shows was pp. § intended operate never merely as receipt received. Rather it to be money appeal's an intentional relinquish- ment of claim for a definite disputed sum. We think recital its contractual that its terms were nature is re- properly descriptive Law, gardless of whatever name it In is called. Restatement of the Contracts, 402, discharge wherein a right of a described § release, as a we note this: writing, supported by “(1) under seal either or A sufficient consideration rights rights that one or more of maker’s contractual
which states
discharged,
compensation
operative immediately
are
release and is
puts
possession
with
when the maker
it
accordance
terms
out of his
with
its
immediately
(p. 757.)
apparent
intent
shall become
effective.”
*6
565,
656
82 W. 2d
(1957),
S.
76
N.
In
v.
D.
Norfolk,
Johnson
collision,
in a
involved
in an automobile
plaintiff,
passenger
Although
at
in the case
bar.
that
a release in all
like
signed
respects
was
nothing
sum agreed upon
it
of the
acknowledged receipt
who,
counsel
five
hired
at
time.
following day plaintiff
The
the
claim ask-
the
thereafter,
handling
firm
days
adjustment
wrote the
that
would
advising
ing
plaintiff
for a return of the release and
The
settlement.
return
tendered
the
any
purported
payment
was
plaintiff
trial court held the execution of the release
it had been
an offer
she revoked before
only
to compromise which
appellate
amount recited therein. The
accepted by
of the
reversed,
binding
the release constituted
court
holding
The same
and settlement
contract of
claim.
of facts in
v.
a similar state
conclusion
reached upon
Hofland
See, also,
907,
Plaintiff error trial urges received as to a possible agreement evidence to be side would re- adjuster actually and the as when plaintiff check. Here in again ceive the settlement evidence was some version that she understood being would dispute, get the forthwith execution of the release. This matter money upon jury exactly was submitted some form to the but as how we cannot determine since the to the are not included jury instructions in the record on The found appeal. jury adversely this as reflected in its No. herein- answer the special question before quoted. have taken the of evidence one receipt way
Under the view we be immaterial. In event subject on this would another error a situation hardly position complain a further avenue of avoiding she was allowed apparently wherein the manner been factual version of of payment release had her finding jury’s The jury. special supported accepted always burden remains on the appellant The sufficient evidence. burden, error, not affirmatively she has sustained to show absent the instructions indicating how not prejudice patent, jury submitted to the we cannot assume whole matter was this court’s actions. error subject rescission for would reasons agreement same contract, and in
as other the case bar was submitted to for determination of mutual validity the jury we fact. Under instructions which must were mistake assume its verdict heretofore jury upheld special proper set forth. reversal the un- further because urges judgment
Plaintiff *7 showed there was a mutual mistake of fact controverted evidence to material facts at the time the existing parties in that did not know and plaintiff executed the nature condition. There are several existing why extent of her reasons there is no unavailing. First, contention at all of this evidence of fact on the defendant such mistake of or of the adjuster defendant, else on behalf of anyone acting or of con- does state that there was. tention not even This well end might mistake fact the matter for a mere of on the part of one of the release, to a in the absence of a of showing fraud, duress, influence, mental is not undue sufficient for incapacity, ground & avoidance of a release v. (McMillin Farmers Bankers Ins. Life Co., Syl. However, 167 Kan. P. 2d 1061). we have ¶ record, voluminous it is far extremely from un- reviewed this herself did not know her condition plaintiff controverted at settlement, stated, of she briefly the time had to a gone doctor and a a medical all of her psychiatrist, own chiropractor, examinations, numerous and had been choosing, hospitalized tests, and had informed by least twice for been her doctors of all this experience. Negotiations leading results to the settle- up were carried on over of several period ment time and months conservations, included at counting least confer- telephone twelve and the ences between It could plaintiff adjuster. be said hardly there uncontroverted evidence even of unilateral mistake of the exact nature fact. And and extent of finally, disability damage at the time of the plaintiff consequent settlement, trial, the future the time were matters of including consider- able issue under the jury’s finding evidence. against the issue mutual mistake of fact was amply supported by substantial evidence. find to warrant the orders and nothing disturbing judgment
We of the trial court and they are affirmed.
approved court. It seems to this case J., dissenting: me presents
Schroeder, unilateral simple contract writing. which is It signed only by the witnessed, plaintiff, and acknowledged Notary before a It Public. recites that the “for the sole consideration of Two Thousand Five Hundred Dollars Dollars ($2,- no/100 to the 500.00) undersigned in hand paid, receipt hereby is. whereof acknowledged,” releases (Emphasis added) defendant of all claims growing out personal injuries and as a property damage of a certain consequence accident.
It was at the stipulated conference pretrial did not $2,500 receive the recited as consideration at the time signed the release and it to the gave adjuster. words, insurance In other the sole consideration recited this unilateral contract was not in fact to the plaintiff when she contract —the re- cital was false. It should be noted this contract prepared by adjuster insurance company. my opinion,
In simple hornbook law that con- a unilateral tract under these circumstances fails for want of consideration. fails, Where consideration in a unilateral contract contract *8 is not binding and cannot be enforced. jurisdiction
It in this recognized is that where a written contract consideration, parol recites evidence is admissible to that no show actually given. consideration This avoids the force of binding In the instant case the contract. this was accomplished aby stipu- conference. lation at the pretrial
Even if the release question be construed as a so-called contract, concede, point bilateral a which do not I the legal sig- of the nificance written constitutes no more than an offer of the on the to release the defendant of all claims for $2,500 sum of (assuming terms of the contract can the insurance give altered company reasonable time to can be pay). accepted This offer only payment $2,500 Rut here it again recited. hornbook one simple law that an contract by making a bilateral into to enter undertakes
who offer, with- provided to withdraw is permitted to another offer to his acceptance party prior the other drawal communicated the ad- notified In this case counsel offer. of the of the offer of the withdrawal company the insurance juster $2,500 of the Company the Allstate Insurance tender by prior to the plaintiff. so- as a
Therefore, if be construed the release even contract, as a matter called bilateral unenforceable law. represents instant case the written holds The court resulting in mutual the minds meeting a mutual contact the elements of valid exist. all and declares promises, could have enforced the parties no doubt either of have It “we says consideration this will come the recited to recover In suit it.” contact finds a when unilateral company to an insurance a shock nature, adjuster, binding an insurance negotiated by of this company prior office of the insurance the home case involving the release. For a recited in money the amount of in- an insured and claims between adjusting the practice Co., Assurance 195 Kan. v. Atlas company, Grohusky see surance 2d 408 P. of the lower judgment submitted court It is respectifully new grant directions reversed with should be trial. foregoing dissenting JJ., join O’Connor,
Fatzer opinion.