32 Kan. 329 | Kan. | 1884
The opinion of - the court was delivered by
This was an action brought by Reed Fretz against Everard Bierer and Jacob Downer, for the alleged breach of the following contract, to wit:
“Know all mm by these presents, That Reed Fretz, of the one part, and Everard Bierer and Jacob Downer, of the other part, of the county of Brown and state of Kansas, (Downer, of Fayette county, Pa.,) are held and firmly bound unto each other in the penal sum of one thousand dollars, to be paid unto the said parties, their heirs, executors, administrators, or assigns, to which payment, well and truly to be made, we bind ours elves, our heirs, executors, and administrators, and every one of them, firmly by these presents.
“The condition of the above obligation is such, That whereas the above-bounden Reed Fretz has this day sold to the said Everard Bierer and Jacob Downer, their heirs and assigns, for the sum of five thousand five hundred dollars, all the following described lot or parcel of land in the county of Brown and state of Kansas, to wit, lot No. 117, on Oregon street, in the city of Hiawatha, with the hotel known as ' Union Hotel/ and all the buildings thereon and privileges thereto attached; possession thereof to be given to said Bierer and Downer on January 1, 1883; all claims of mechanics, lumbermen and others, against said property, to be paid by said Fretz, and also taxes for years 1881 and 1882; and said Fretz is to have the railing put on side of first-story stairway, and put in wash basins, pipes, etc., in wash-room, as now ordered by him. In consideration whereof, said Bierer and Downer agree to convey to said Fretz the east half of the northwest quarter, and the west half of the northeast quarter, and the east half of the southwest quarter, and the southwest quarter of the southwest quarter; all valued at $3,000, and all in section No. 20, of township No. 1, of range No. 15, and to assume payment of a mortgage due to S. W. Colley, and to pay to said Fretz the balance of said sum of $5,500, after deducting said mortgage*332 and interest, on or before January 1, 188.3, in case the other provisions of this contract are then complied with by said Fretz. Upon the payment of the said sums being made, at the time and in the manner aforesaid, the said Reed Fretz and wife, and the said Bierer and wife, and Jacob Downer, single man, shall, on or before January 1,1883, or as soon thereafter as possible, for themselves, their heirs, executors, and assigns, covenant and agree and with the said parties, that they, the said Reed Fretz and wife, to Bierer and Downer, and the said Bierer and Downer to Reed Fretz, their heirs, executors, administrators and assigns, shall execute good and sufficient warranty deeds for the above-described premises to and from each party.
“Now if the said Reed Fretz, on his part, and the said Bierer and Downer, on their parts, shall well, and truly keep, observe and perform all said covenants and agreements herein contained, on their respective parts, then this obligation is to be void; otherwise, to remain in full force and virtue.
“Given under our hands, this 23d day of December, 1882.
Reed Fretz. [Seal."
E. Bierer. "Seal.'
Jacob Downer. [Seal.’_
By E. Bierer, his agent.
Executed in presence of Jas. Mathers, Witness.”
A trial was had before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendants for $500 and costs, and the defendants, as plaintiffs in error, now bring the case to this court and ask for a reversal of such judgment.
The plaintiffs in error, in their brief, present a vast number of points and cite a vast number of authorities; and while we have carefully considered all the points made, with many of the authorities cited, yet we do not think that it js necessary to mention many of them in this opinion. We shall mention only those points made which seem comparatively to be of the greatest importance.
The first point of importance made by counsel is, that the instrument sued on was never delivered; that it never became operative, and never had any binding force or obligation as a completed contract. We think this point is untenable. Bierer
“Fretz and I went together to Lacock’s office; told La-cock here was a contract between. Fretz and myself about buying hotel property, and I would leave it with him until Monday, and then I would get it and make Fretz a duplicate.”
There was no understanding or agreement between the parties that the instrument should not be considered “a contract,” or that it should be considered merely as an escrow; but, on the contrary, both parties from that time' forward treated it as “a contract;” and this the testimony of both Fretz and Bierer shows. We think the instrument was duly delivered, and that it became “a contract” and operative on that Saturday evening. It is not necessary in law, to make a contract operative and binding, that there should be an actual manual delivery of the instrument by one of the parties to the other; and this is true even where the instrument is signed by only one of the parties as a deed of conveyance. But where the instrument is signed by both parties, as in this case, it may become operative and be binding upon both parties as a contract, although it may be retained by only one of them, or be delivered to a third person. All that is necessary in the way of delivery to make a written instrument signed by both parties operative and binding is, that there shall be a mutual understanding between the parties that the instrument shall be operative and binding between them.
The plaintiffs in error, defendants below, make the further points, that this instrument is void for various uncertainties and obscurities in its terms; that it does not contain the entire contract between the parties; that other and additional matters were agreed to between the parties; and that its execution
The plaintiffs in error, defendants below, also claim that by virtue of the terms of said written instrument, time constituted an essential ingredient of the contract, and was of the essence thereof, and that the plaintiff Fretz did not perform his portion of the contract within the required time. Now in the first place, we do not think that time is of the essence of the contract, except possibly in a very slight and limited
On or before January 5,1883, Fretz had substantially complied with and performed everything that he was required to perform under the contract; and he again on that'day tendered the deed for the hotel property to Bierer; and again Bierer refused to receive the deed, and refused performance on the part of himself and Downer; and such refusal was based upon the fact that Troxel had failed to purchase the hotel furniture of Fretz, and had failed to lease the hotel from
But it is claimed by the plaintiffs in error, defendants below, that some of the claims against the defendant were paid
The plaintiffs in error, defendants below, also claim that the pleadings were not sufficient to authorize any judgment to be rendered in favor of the plaintiff below. They further claim that where the allegations of their answer are inconsistent with each other they are not bound by the allegations against themselves, but may rely upon those in their favor; and they further claim that although the allegations of the answer may set forth matters definitely and explicitly which were defectively set firrth in the petition, that such allegations in the answer cannot under any circumstances cure the defective allegations of the petition. We think the plaintiffs in error, defendants below, are in error with respect to all these
The plaintiffs in error, defendants below, also claim that the court below erred with respect to the rule of damages.. The court below gave the following instruction to the jury:
“6. If you find in favor of the plaintiff, then the amount of his recovery should be the excess of value of the consideration which he was to receive over and above the market value of the hotel property, with the improvements that were to be made upon it under the terms of the contract; that is, you should ascertain the market value of the hotel property at the time of the contract of sale, in the condition that it was to be-turned over to the defendants under the terms of the contract; then ascertain the market value of said tracts of land in section 20, as aforesaid, at the time of said contract, and add thereto the sum of $2,500, and from the aggregate of these two sums subtract said market value of said hotel property, and the amount should be your verdict, in case said market value of the hotel property is less than the said aggregate. But if the market value of said hotel proj>erty, as aforesaid, is equal to or in excess of said aggregate, then the. recovery of the-plaintiff should be for a nominal sum only.”
We think the court below adopted the correct rule of damages. (1 Sedgwick on Damages; 7th ed., p. 370, marginal page-186, p. 382, marginal page 190, et seq., also p. 428, being a. note and a continuation of marginal page 199; 2 Sutherland on Damages, 211, et seq.; Foley v. McKeegan, 4 Iowa, 1; Tracy v. Gunn, 29 Kas. 508.)
As the jury found in favor of the plaintiff and against the defendants, and rendered merely a general verdict, and made no special findings, we have generally assumed the facts to be in accordance with the plaintiff’s evidence.