This is an appeal from a judgment of a trial court holding that the parties to this appeal entered into an agreement to compromise and settle a certain damage claim. The amount of plaintiffs' "out-of-pocket" expenses and reasonable attorney fees, agreed to be paid under the terms of the agreement, were determined by the court and a judgment therefor was entered against the defendants in the sum of $3,175.00. The plaintiffs have appealed. We will continue to refer to the parties as they appeared in the court below.
The plaintiffs are the owners of the El Charro Motel in Hays, Kansas. The defendants are the owners, suppliers or lessees of a gasoline service station located adjacent to the motel. Gasoline from the underground storage facilities on the defendants' property escaped and polluted the wells which were the only source of water supply for the motel. As a result of this pollution from defendants' facilities two separate actions were filed. One action was filed by the plaintiffs and a second action was filed by another property owner, Lois Binder. Both claims were set for trial in the district court and on the morning the Binder claim was to be tried a compromise settlement was proposed by the defendants and accepted by Mrs. Binder, whereby defendants agreed to drill a new fresh water well on the Binder property, pay "out-of-pocket" expenses and reasonable attorney fees in full settlement of the Binder claim. The Binder claim has since been settled and the action dismissed in compliance with this compromise agreement.
The same attorney represented both the Rymphs and Mrs. Binder. The defendants' attorneys were the same in both cases. When the Binder compromise settlement was agreed upon the following colloquy in regard to the Rymph claim occurred between the court and claimants' counsel in the presence of defendants' attorneys in open court:
"MR. HERRMAN: Yes, sir."
Both cases were continued pending the drilling of fresh water
A postscript on this letter of November 26, 1969, reads as follows:
Some three and one-half months were consumed in successfully drilling and equipping the new well on the Rymph property. Fresh water was obtained, and the hookup was completed at the motel on March 9, 1970. When the well was nearly complete plaintiffs sought to repudiate the agreement because of delay in making the well operational. In June, 1970, a claim for $20,000 in damages was made by the plaintiffs against defendants. The fragile accord having been shattered, the parties returned to the court for a determination of their differences. The defendants amended their pleadings on January 19, 1971, to allege the compromise and settlement agreement, and they asked the court to determine the amount owed to plaintiffs for "out-of-pocket" expenses and attorney fees.
At the trial one of the owners of the motel, William H. Rymph, testified that on November 24, 1969, his attorney Herrman called and told him an agreement had been worked out; that the defendants would drill a well and see if they could get fresh water; and that if they could furnish the motel with fresh water and would in addition pay the "out-of-pocket" expenses and attorney fees in full plaintiffs would drop the case. He further testified that he checked
"Q You have seen that letter?
"A That is correct.
"Q Do you recall that?
"Q Was that a correct statement then?
The matter was fully tried to the court and the court found that an agreement to compromise and settle the damage claim had been agreed upon, that under the agreement defendants were to drill and equip the well so as to furnish an adequate supply of fresh water to the motel and to pay the plaintiffs' "out-of-pocket" expenses incidental to the pollution plus reasonable attorney fees, in return for which plaintiffs agreed to drop their lawsuit. The judge found the well was drilled within a reasonable time, it provided an adequate
The law favors the compromise and settlement of disputes and when parties enter into an agreement settling and adjusting a dispute neither party is permitted to repudiate it in the absence of fraud, bad faith or mutual mistake of fact. (Connor v. Hammer, 201 Kan. 22, 439 P.2d 116; Reynard v. Bradshaw, 196 Kan. 97, 409 P.2d 1011; International Motor Rebuilding Co. v. United Motor Exchange, Inc., 193 Kan. 497, 393 P.2d 992.)
When time of performance is not fixed in an executory contract the usual rules of construction should be employed to ascertain the intention of the parties, and if the nature of the subject matter and the surrounding circumstances so indicate a reasonable time for performance shall apply. (Brown v. Cruse, 90 Kan. 306, 133 Pac. 865; Woodman v. Millikan, 126 Kan. 640, 270 Pac. 584; see also Kirk v. First National Bank, 132 Kan. 404, 295 Pac. 703.)
It is apparent from the facts and circumstances of our present case that defendants were to be afforded a reasonable time in which to drill the well. What is a reasonable time for performance is generally a question for the trial of fact. (Morrison v. Wells, 48 Kan. 494, 29 Pac. 601; Marsh v. Brown-Crummer Inc. Co., 138 Kan. 123, 23 P.2d 465.) This being so we believe the trial court as the trier of fact was justified under the evidence in finding the well was completed "within a reasonable time and as expeditiously as possible under the circumstances."
The appellants attack the findings of fact of the trial court as to the "out-of-pocket" expenses incurred. The amount claimed in the letter of November 26, was increased by $200.00. It is readily apparent that certain items of expense claimed by the plaintiffs at the time of trial, such as personal labor and loss of the value of the previous wells on the premises, do not fall in the category of "out-of-pocket" expenses. The amount of expenses payable was a question for the trier of the facts. When findings of fact are attacked for insufficiency of the evidence the power of this court on appeal begins and ends with a determination of whether there is any substantial evidence to support the findings. It is not the function of the appellate court to weigh conflicting evidence, pass on the
Plaintiffs complain of the amount of reasonable attorney fees allowed by the trial court. In the record before this court it appears the plaintiffs submitted a claim for attorney fees of $3,080.00. We find no evidence in the record to indicate how such figure may have been arrived at by plaintiffs. We note that when the letter of November 26, 1969, was sent plaintiffs' attorney was claiming a total of 150 hours spent on both the Binder claim and the Rymph claim. There is nothing further in the record. The amount of reasonable attorney fees was a question of fact. What is reasonable in the community under prevailing practices must be left to the decision of the trial court. The reasonable value of attorney fees when determined by a trial court as the trier of facts will not be subject to redetermination by this court. The value of legal services in a case pending before a trial court may be determined by that court from its own knowledge and professional experience in the community or the court may require additional expert testimony. (See Service v. Pyramid Life Ins. Co., 201 Kan. 196, 440 P.2d 944; Wollard v. Peterson, 145 Kan. 631, 636, 66 P.2d 375, and Epp v. Hinton, 102 Kan. 435, 170 Pac. 987.)
This case on appeal presents only questions of fact which were determined in the court below. There is substantial evidence in the record to sustain the trial court's findings. The findings adequately support the judgment from which the plaintiffs have appealed. No prejudicial error appears.
The judgment is affirmed.