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COMMERCIAL ASPHALT, INC. v. SMITH

No. 44,917

200 Kan. 362 (1968)

436 P.2d 849

COMMERCIAL ASPHALT, INC. Appellant, v. MILO G. SMITH and FRANK SMITH d/b/a BIG THREE SAND & GRAVEL COMPANY, Appellees.

Supreme Court of Kansas.

Opinion filed January 27, 1968.

Attorney(s) appearing for the Case

Benjamin C. Langel, of Wichita, argued the cause, and George B. Powers, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris, Gerald Sawatzky, Donald L. Cordes, Robert L. Howard, Charles J. Woodin, Mikel L. Stout, Phillip S. Frick, Jerry G. Elliott, John E. Foulston and Stanley G. Andeel, all of Wichita, were with him on the briefs for the appellant.

Ralph E. Gilchrist and Harry E. Robbins, Jr., both of Wichita, argued the cause, and Carl L. Buck, Stephen K. Lester, Lyndon Gamelson, Kenneth H. Hiebsch and Donald C. Tinker, Jr., all of Wichita, were with them on the briefs for the appellees.

The opinion of the court was delivered by

HATCHER, C.:

This was an action to cancel an instrument in the nature of a mineral lease restricted to sand. The plaintiff also sought damages and injunctive relief.

This is the second lawsuit between the same parties. The previous action also involved an attempt to cancel the lease. (See Commercial Asphalt v. Smith, 196 Kan. 164

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