167 Ky. 295 | Ky. Ct. App. | 1915
Opinion of the Court bt
Affirming.
By a written contract' dated Juné 17th, 1912, the appellants, John B. Bolen and Puss Bolen, his wife, sold to the appellee, Jonathan Jenkins, a tract of land supposed to contain 200 acres, situated on the waters of Pelt Glayheart Branch, in Knott county, at $10.00 per acre. Jenkins paid $200.00 of the purchase price at the time the contract was made.
The description of the land was in very general terms and the contract provided for the fixing of the correct acreage by a survey to be paid for by Jenkins. Bolen, however, was to make his deed, containing a covenant of general warranty and the other usual covenants; and Jenkins was to pay the remainder of the purchase price upon the delivery of the deed.
Jenkins caused a survey to be made by Adam Campbell, a competent surveyor. According to this survey, appellant’s tract contained 167.32 acres; and, upon Jen
Appellant insists that the $700.00 bonus was not embraced in the contract, for the reason that Jenkins did not want it put in the contract for fear it might unduly enhance the price of coal lands in that neighborhood, and that it was, for that reason, a secret agreement between appellant and Craft, the agent who conducted the business for Jenkins.
The chancellor specifically enforced the contract, and Bolen appeals.
In addition to the two defenses above specified, Bolen asks a reversal upon the further ground that Jenkins never made a tender of the purchase money.
In 36 Cyc., 705, the rule is stated as follows:
“Where the vendor has repudiated the agreement, thus making it appear that if the tender were made its acceptance would be refused, tender or offer by the vendee before suit is unnecessary. Equity does not require a useless formality.”
In Elliott on Contracts, section 1972, it is said:
“It is a maxim that the law does not require a man -to do a vain and fruitless thing, so it has been held that a strict and formal tender is not necessary where it appears that if made it would have been vain and fruitless. The rule may be stated as follows: An actual tender of performance may be excused when there is a readiness and willingness and an ability to perform, and actual performance has been prevented or waived by the party to whom performance is due. Thus, it has*297 ever been held that where the other party expressly repudiates the contract and refuses to be bound by it or it appears that he will not accept the tender where offer of performance is made, actual tender is excuséd. ’ ’
To the same effect see Harris v. Greenleaf, 117 Ky., 817.
No trade was made, however, upon that occasion, and nothing was. said about the seven hundred dollar claim afterward asserted by Bolen. A few days later, however, Bolen called at Craft’s residence and accepted his offer, and the terms ’of the sale were reduced to writing in the form of the contract of June 17th, 1912.
Jenkins paid Bailey $100.00 for the ten-acre lap or interference above referred to. Jenkins also paid Bailey for the seventy acres which both he and Bolen claimed, and offered to complete the contract with Bolen by paying him at the rate'of $10.00 per acre for the 167.32 acres found to be within his boundary, according to the Campbell survey. Craft says, emphatically, that the only thing that passed between him and Bolen as to the seven hundred dollar item was his proposition to pay Bolen for the land actually within his boundary, and to pay Bailey for what he claimed of Bolen’s land, which was estimated at about seventy acres, in addition to the ten acre lap above referred to; and that, in this way,
Jenkins’ side of that issue is sustained’’by -Craft, Campbell, Dobson, and the writing. On the other hand, Bolen is sustained alone by his'oWn testimony, in so far as direct proof is concerned. The testimony of his brother, Reece Bolen, and Reece’s wife, referring to certain conversations between Campbell and -Bolen, and between Craft and Bolen, would not, if competent, sustain Bolen’s claim. These- conversations ■ are too vague and indefinite to amount to proof. •
As an instance of this deficiency in appellant’s proof, Reece Bolen testified that Campbell said he figured that the land would bring, -or cost, about $13.50 per acre. When it is remembered that Jenkins paid Bolen for his land within his boundary at $10.00 per acre, and also paid Bailey for the seventy acres within the Bolen boundary* the land probably did stand Jenkins about $13.50 per acre, although Bolen was to get only $10.00 per acre, according to the contract.
If Cornett found the Campbell boundary to be incorrect in any respect, he failed to disclose the fact.
So, upon these issues of fact, we are not prepared to say that the findings of the chancellor were against the weight of the evidence; on the contrary, the weight of the parol testimony sustains the contract, as written.
Judgment affirmed.