199 P.2d 793 | Kan. | 1948
The opinion of the court was delivered by
These cases are here on rehearing. The original opinion is found in 165 Kan. 49, 193 P. 2d 253. After the opinion was filed all parties petitioned for a rehearing and it was granted. Additional briefs have been filed, the cases reargued and reconsidered. The appellee contends that the judgments below should be affirmed for the reason that the question of determination of the existence of
The appellant urges on rehearing that the evidence establishes the existence of the contract, its terms, and performance thereof by the appellant, and that by reason thereof judgment should be directed in appellant’s favor. A complete and careful analysis of the testimony is set forth in the former opinion and need not be restated here. However, mention of some of the salient features may be of assistance in disposing of the present contentions of the parties. Three witnesses testified on behalf of the plaintiff to the making of the contract and its terms. Some eight other witnesses testified to declarations by J. E. Wert and Lizzie Wert made subsequent to the date of the contract, which declarations recognized the existence of the contract and its binding force upon them. There is no substantial evidence to contradict these witnesses. So far as the record discloses, ten of these witnesses were candid, unprejudiced, and there is nothing improbable about their testimony. Cross-examination did not weaken their testimony in any wise.
There was nothing to discredit the testimony of the eleventh witness, Cora McDaniels, other than that she was a sister of Mildred and that certain evidence was offered to show she had testified in the probate court Mildred was to remain single, while in the district court she testified Mildred was to remain single as long as J. E. Wert and Lizzie Wert lived. As we shall hereafter point out, under the circumstances of this case, this difference is merely one of inference.
On the other hand, outside of the impeachment testimony as to Cora McDaniels, appellee’s evidence consisted largely of negative evidence of performance of a subsidiary condition. There is no contention that Mildred did not perform the principal condition, namely, that she remain single. In the view we take of these cases, the negative evidence of performance of this subsidiary condition is not determinative of the questions here involved. The substance of the contract, established by the evidence, is that if Mildred would
We now come to the question of performance. The principal condition annexed to the vesting of the. estate in Mildred was that she should remain single until the death of the surviving parent of her deceased husband. It is stipulated in the record that she has complied with this condition.
The only matter remaining is the statement of the parents, as testified to by some witnesses, that Mildred was to be as good to them in the future as she had been in the past. There is no evidence in the record that she was not. Calvin’s parents had never complained of her conduct and apparently were fully satisfied with her treatment of them: It cannot now be successfully urged that she has not performed this condition, if it existed. (Smith v. Cameron, 92 Kan. 652, 141 Pac. 596; Smith v. McHenry, 111 Kan. 659, 207 Pac. 1108).
Where the existence of a contract and its performance have been
Clearly, the present cases present instances for the application of that rule. There is nothing left for the trial court to find either in the matter of the existence of the contract, or its terms or performance hereof. Mildred Wert is entitled to receive, as of the date of Lizzie Wert’s death, one-half of the distributive estates of J. E. Wert and Lizzie Wert, deceased.
The judgments of the district court are reversed, with directions to enter judgments in conformity with this opinion.