James Colborn Revocable Trust; Catherine Colborn Revocable Trust; and Dorothy Jo Chapin, Appellees,
Hummon Corporation, Appellant.
BY THE COURT
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.
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.
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.
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.
Whether contractual performance is based on a condition
precedent is a question of fact.
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.
contract is unenforceable due to vagueness if the intent of
the parties cannot be ascertained.
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.
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.
interpretation of a written instrument is a question of law
subject to unlimited appellate review.
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.
When determining whether a settlement agreement has been
formed, we remember the key principle that the law favors
settlement of disputes.
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 . . .
from Barber District Court; Francis E. Meisenheimer, judge.
M. Rhoads, of Law Offices of Thomas M. Rhoads LC, of Wichita,
V.C. Nicolay, of Stull, Beverlin, Nicolay & Haas, LLC, of