49 Kan. 94 | Kan. | 1892
The opinion of the court, was delivered by
This was an action brought in the court below by the Republic Investment Company against W. H. Bohart, to recover $316.85, with interest, upon 12 written contracts for the sale of certain lots in Belleville, in Republic county, in this state. These contracts were executed and signed upon the 25th day of August, 1887, by the investment company and W. H. Bohart. Each contract provided that the purchase-money therein named was to be paid in installments. The investment company, upon the completion of all the payments, was to execute to Bohart, his heirs and assigns, a deed conveying the premises in fee-simple, with the ordinary covenants of warranty. Each contract further provided that, in case Bohart failed to make the payments punctually at the times stated, the contract as to the investment company would be utterly null and void. Bohart being a non-resident of the state, the investment company, on May 5, 1888, commenced
Section 53 of the civil code reads:
“An action, other than one of those mentioned in the first three sections of this article, against a non-resident of this state or a foreign corporation, may be brought in any county in which there may be property of, or debts owing to, said defendant, or where said defendant may be found; but if said defendant be a foreign insurance company, the action may be brought in any county where the cause, or some part thereof, arose.”
This action was upon a contract for the payment of money, and was brought in Reno county, where the defendant, a nonresident, had property. The court had jurisdiction of the subject-matter. The defendant appeared, the trial was had, and judgment rendered against him. The district court of Reno county is a court of general jurisdiction. The petition alleged that Bohart, the defendant, was a non-resident, and the proceedings show that his property in Reno county was attached. Where a court has general jurisdiction of the subject-matter of an action, it is not necessary to allege in the petition the facts showing the jurisdiction of the court; therefore the trial court committed no error in overruling the demurrer to the petition, and the defendant below has no just cause for complaint concerning the exercise of the jurisdiction of the trial court. He made a general appearance, and while he demurred to the jurisdiction of the court, he at the same time alleged
The provision in the contracts making them null and void if Bohart made default in the payment of his installments, or any installment, was for the benefit of the investment company. The company could have insisted upon this provision, and had the contracts annulled. It also had the right or option to declare a forfeiture for the non-payment of the installments, or any installment; but it also could waive that right. (Johns. Ch. 369; Railroad Co. v. Bickley, 21 Kas. 275; Land Co. v. Perry, 25 id. 140.) A waiver of the right to declare a forfeiture for non-payment at a specified time is not a rescission of the contract. The investment company, as the vendor, is entitled to its money upon the contracts, and the vendee to the lots therein described. (Barrett v. Dean, 21 Iowa, 423; Sigler v. Wick, 45 id. 690; Blood v. Enos, 12 Vt. 625.)
The final alleged error is that the court improperly overruled the demurrer to the evidence. The evidence is not preserved in the record, and this question cannot be considered. If it were necessary at any time during the progress of the action to offer the attachment proceedings to establish that Bohart, the defendant, had property in Reno county subject to the payment of his debts, it will be assumed that this was done, to uphold the judgment, because the record is incomplete.
The judgment of the district court will be affirmed.
