Berryman v. Kmoch

221 Kan. 304, 559 P.2d 790 (1977)

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Nature of the Case

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Facts

Berryman (P), a landowner, filed a declaratory judgment action to have an option contract declared null and void. Norbert H. Kmoch (D), the optionee, answered and counter-claimed seeking damages for P's failure to convey the land. Both parties filed separate motions for summary judgment. The option agreement dated June 19, 1973, was signed by P, and was addressed to D. The granting clause provided: 'For $10.00 and other valuable consideration, I hereby grant unto you or your assigns an option for 120 days after date to purchase the following described real estate: Then followed the legal description of 960 acres of land located in Stanton County, Kansas.' P owned the land the land. D was a Colorado real estate broker. A third person, Samuel N. Goertz, was a Nebraska agricultural consultant. Goertz learned that P was interested in selling the land and talked to P about obtaining an option on the land for D. Goertz talked to D and D prepared the option contract dated June 19, 1973. Goertz and D flew to Kansas. At the meeting the option agreement was signed by D. Although the agreement recited the option was granted 'for $10.00 and other valuable consideration', the $10.00 was not paid. P called D by telephone and asked to be released from the option agreement. P sold the land to another person. In August, D decided to exercise the option and went to the Federal Land Bank representative in Garden City, Kansas, to make arrangements to purchase the land. D then discovered that the land had been sold by P. D then recorded the option agreement in Stanton County. D sent a letter to Berryman in October 1973, attempting to exercise his option on the land. P responded by bringing the present action to have the option declared null and void. D admits that the $10.00 cash consideration recited in the option agreement was never paid. D points to 'other valuable consideration' and that he should have been permitted to introduce evidence to establish time spent and expenses incurred in an effort to interest others in joining him in acquiring the land. D obtained a farm report on the land which might interest other investors. D also argues that promissory estoppel should have been applied by the trial court as a substitute for consideration. P got the judgment and D appealed.