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James Colborn Revocable Trust v. Hummon Corp.

Court of Appeals of Kansas

December 8, 2017

James Colborn Revocable Trust; Catherine Colborn Revocable Trust; and Dorothy Jo Chapin, Appellees,
v.
Hummon Corporation, Appellant.

         SYLLABUS BY THE COURT

         1. To be enforceable, a contract must be supported by consideration. The consideration necessary to establish a valid contract, express or implied-in-fact, must be an act, a forbearance, or a return promise, bargained for and given in exchange for the promise.

         2. Where one in good faith asserts a claim not obviously invalid, worthless, or frivolous, and which might be thought to be reasonably doubtful, the forbearance to prosecute such a claim will furnish a sufficient consideration for a promise of settlement and compromise of such claim.

         3. When a contract is reduced to writing and signed by the parties, the existence of consideration is presumed. In such cases, lack of consideration is an affirmative defense that must be proved by substantial competent evidence.

         4. When a contract includes a condition precedent, the contract, even though executed and delivered by the parties, cannot be enforced without the performance of that condition precedent. A condition precedent requires the performance of some act or the happening of some event after the terms of the contract, including the condition precedent, have been agreed on before the contract shall take effect.

         5. Whether contractual performance is based on a condition precedent is a question of fact.

         6. Generally, issues not raised before the district court cannot be raised on appeal. One exception to that general rule is when consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights. This exception is not met when a party fails to explain which fundamental right would be denied if this court did not consider the newly raised issue.

         7. A contract is unenforceable due to vagueness if the intent of the parties cannot be ascertained.

         8. Because a settlement agreement is a contract, the parties must agree on all material terms. Once that is done, any nonmaterial discrepancies can be resolved by the court consistent with the parties' intent when they agreed upon the material terms.

         9. A material term is a contractual provision dealing with a significant issue such as subject matter, price, payment, quantity, quality, duration, or the work to be done.

         10. The interpretation of a written instrument is a question of law subject to unlimited appellate review.

         11. The primary rule in interpreting written contracts is to ascertain the intent of the parties. If the terms of the contract are clear, there is no room for rules of construction, and the intent of the parties is determined from the contract itself.

         12. When determining whether a settlement agreement has been formed, we remember the key principle that the law favors settlement of disputes.

         13. Where a contract specifies that access is for a specific purpose, we apply the principle of statutory construction expressio unius est exclusio alterius, meaning that the mention or inclusion of one thing implies the exclusion of another. We cannot reasonably construe that language to mean, instead, that the parties intended for the stated purpose to be merely one among others, as if the language had stated "for purposes including but not limited to . . . ."

         Appeal from Barber District Court; Francis E. Meisenheimer, judge.

          Thomas M. Rhoads, of Law Offices of Thomas M. Rhoads LC, of Wichita, for appellant.

          Josh V.C. Nicolay, of Stull, Beverlin, Nicolay & Haas, LLC, of ...


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