Mumper v. Kelley

The opinion of the court was delivered by Yalentine, J.: [259] 1 benefit for third person. [258] That the plaintiff’s petition states a cause of action in favor of the plaintiff and against the defendant, we think can scarcely be questioned; for in this state it is well [259] settled and established that whenever two persons make a contract for the benefit of a third, the third may maintain an action thereon for any breach thereof to his injury. (Manufacturing Co. v. Burrows, 40 Kas. 361-363, and cases there cited.) Such a contract and such a breach are alleged in the plaintiff’s present petition. But the more difficult question presented is, whether there is a defect of parties defendant or not. Now if it were necessary that the contract upon which the plaintiff has founded his action should be reformed in order to give him a cause of action thereon, then it would seem necessary that each of the parties making the contract should be made a party to the action. But is it necessary that the contract should be reformed ? Is there not enough in the contract aside from the untrue portion of the description of the claim of Mumper against Phelps, upon which Mumper may maintain his present action against Phelps without any reformation of the instrument ? May not that portion of the instrument which is untrue be treated merely as surplusage ? Instruments in writing are often treated in that manner, both in actions at law and in suits in equity. 2 pSy^mél’ partly false-enforcement of contract. Where a description in an instrument in writing is partially true and partially false, but where it can be clearly made to appear, . ’ , . . ’ either from the face of the instrument itself or from extrinsic facts, which portion of the description is true and which portion is false, the false portion of the description will not necessarily render the instrument void, nor will it necessarily require that the instrument should be reformed before it can be enforced. Generally, such an instrument will be held to be valid and will be enforced without any reformation. (Am. Cent. Ins. Co. v. McLanathan, 11 Kas. 533, 547; King v. Aultman & Co., 24 id. 246.) In the first case it was held, among other things, as follows: “Where in the description of real estate there are found repugnant calls, the instrument is not .void for uncertainty, nor is there any need of reforming it, provided it-clearly ap [260] pears, either from the face of the instrument or extrinsic facts, which is the true and which the false description.” 3. to reform contract. In the second case it was held, that where the description of a mare in a chattel mortgage was partly true and partly false, the untrue portion of the description would not render the mortgage invalid; and the mortgage was held valid and enforceable without any reformation. The contract in the present case contains the following provision: “It is also agreed that said Kelley shall assume and agrees to settle with Gr. B. Mumper for whatever claim he may have against said Phelps by reason of his previous interest in the firm of Smith & Mumper, which claim now appears on the books of O. P. Smith & Co.” Now it appears from the allegations of the petition that Mumper did have a claim, and only one claim, against Phelps, by reason of his, Mumper’s, previous interest in the firm of Smith & Mumper, and this claim was originally for precisely $1,300; but Phelps paid $200 thereof before the present contract was executed, thereby reducing the amount of the claim down to $1,100, and Kelley, after the contract was executed, recognized his obligation under the contract to pay this claim, and paid $700 thereof, leaving only $400 of the claim still due and unpaid. The only difficulty in the way is, that the claim never appeared upon the books of O. P. Smith & Co. Does this render the claim uncollectible, or prevent its collection until there shall be a reformation of the contract ? Under the pleadings there is no dispute concerning the correctness of the claim from the time of its inception To the present time. At the time the contract was made it was just $1,100. It is now precisely $400, and Kelley in his contract with Phelps agreed to pay it all, and the only defense which he now sets up is that there was a partially false description of the claim in the contract, and that he is not bound to pay it unless Phelps is made a party defendant in the action, and the description reformed. We do not think that it is necessary to reform the description, buppose a purchaser of real estate should agree with his vendor to assume the payment of a mortgage debt already [261] existing against the property, and suppose that although the mortgage was sufficiently described, still that it was also stated that the mortgage was recorded in book “B” in the register’s office, while in fact it was not recorded in that book, but was recorded in book “ C: ” could the purchaser refuse to pay the mortgage debt, or refuse to pay it until after the contract should be reformed? If Mumper, instead of having only one claim against Phelps, had several claims against him, then it might be a material question as to whether the particular claim sued on was the one intended to be paid by Kelley, and it might then be possible that Phelps would be a necessary party in the case. But such is not the present ease. Under the facts of the present case as they are alleged in the petition, it is wholly immaterial whether the claim sued on had ever been entered on the books of O. P. Smith & Co. or not. And we must take the facts as they are alleged in the petition, to be true. If, however, they are not true, then it devolves upon the defendant to answer, denying them. And the defendant might also in his answer set up a state of facts very different from those stated in the plaintiff’s petition, and facts that would require that Phelps should be made a party defendant; but the petition itself does not disclose any such state of facts. We think the demurrer to the plaintiff’s petition should have been overruled. The judgment of the court below will therefore be reversed, and the cause remanded for further proceedings. All the Justices concurring.