Burkhalter v. Jones, 32 Kan. 5

Burkhalter v. Jones

32 Kan. 5 | Kan. | 1884

The opinion of the court was delivered by

Valentine, J.:

This was an action brought by Charles Burkhalter against Jane Jones, in the district court of Doniphan county, for the purpose of having an alleged contract corrected, reformed, and specifically enforced. The case was submitted to the. court without a jury, and the court made special findings of fact and law, and upon such findings rendered judgment in favor of the defendant and against the plaintiff, dismissing the plaintiff’s action without prejudice. Of this judgment the plaintiff now complains.

The plaintiff resided at Troy, Kansas, and the defendant resided at Normal, Illinois, and the supposed contract was made solely by correspondence. This correspondence and the supposed contract made thereby, were with reference to the purchase' by the plaintiff of the defendant of sixty acres of land owned by the defendant in Doniphan county, Kansas. *11This correspondence was simply a continuation of a previous correspondence of the same character, which had been carried on between the plaintiff and the defendant’s husband previous to his death, which occurred on August 2, 1883. The first letter received by the defendant from the plaintiff was written about August 16,1883. This contained a proposition to purchase the land from the defendant. The land at that time wás worth about $2,400, which was at the rate of $40 per acre. This letter of the plaintiff was clumsily written, but it stated in substance that he had formerly offered the defendant’s husband $40 per acre for the land, but that he then thought that $35 per acre would be “a big price for it.” He then stated in the letter as follows: “To buy the land now and pay cash down, and not get possession until next spring, and have the taxes to pay on it this fall, I would not want to pay over $2,000 for the sixty acres. And counting taxes and interest on the money, that would make it a little over $35 per acre. ... If that will buy the land, I will take it and pay all the money down.” On August 21,1883, the defendant wrote to the plaintiff, saying: “We will accept your offer,” and asking the plaintiff to send her the description of the land, which he immediately did, except that he stated that the land is in range 20, when in fact it is in range 21. On August 25, 1883, she executed a deed to the plaintiff for the land, except that she made the same mistake with regard to the description of the land that the plaintiff did, and she stated the consideration to be $2,100, which is at the rate of $35 per acre. She sent this deed to a banker at Troy, Kansas, and instructed the banker to deliver it to the plaintiff upon the receipt of $2,100. The plaintiff however objected to. paying the $2,100, and did not pay the same, and the banker did not deliver to him the deed. Afterward the plaintiff ordered the deed to be returned to her, which was done, and she then sold the land to another person for $2,400, being at the rate of $40 per acre.

The plaintiff by his letter offered to purchase the land and pay $2,000 therefor; but the defendant would seem to have *12understood that the offer was to pay $35 per acre, which would make the amount to be paid for the land $2,100. We think upon the facts of the case that in legal contemplation the plaintiff and defendant entered into a contract for the purchase and sale of the land for $2,000; but in equity it can hardly be said that any contract was made between the parties; for in all probability the parties never in fact agreed to the same thing. He offered to pay $2,000 for the land, while she in all probability intended to agree to take $2,100, and nothing less. He offered to pay $2,000, and get possession in the spring of 1884; but when in the spring of 1884? In March, April, or May, and what day of March, April, or May? Possibly she intended to take $2,100 and give possession immediately. In all probability she did not understand the plaintiff’s letter as he did. And it must be remembered that she is a woman, and a woman who had been recently left a widow, and who was presumably unaccustomed to the transaction of business. Even her letters to the plaintiff were not written by herself; therefore it is not very strange that she should misunderstand the scope and meaning of the plaintiff’s letter and the exact character of his offer. In his letter he spoke of $35 per acre, and then of $2,000 for the sixty acres, and again of $35 per acre, and then says: “If that will buy the land, I will take it and pay all the money down.” The word “that” we would think referred to the $2,000; but the defendant in all probability believed that it referred to the $35 per acre. It will be perceived that the plaintiff at no time and in no part of his letter made any direct, explicit, or exact offer to pay $2,000 for the land, but simply used the language, “I would not want to pay over $2,000 for the sixty acres” and not get possession, etc. He also mentioned the sum of $35 per acre. The court below refused to order or decree that the alleged contract should be specifically enforced, and we do not feel like reversing that decision. The court below did not grant the defendant any affirmative relief, but simply dismissed the plaintiff’s action without prejudice, for the purpose that he might commence an action at law for damages if he should choose to do so. Now *13a stronger case for tire specific performance of a contract should be made before a court should order or decree the specific performance of the contract, than need to be made to authorize the dismissal of the plaintiff’s action; for if the court decrees the specific performance of the contract, the defendant has no remedy; but if the court dismisses the plaintiff’s action without prejudice, as in this case, the plaintiff may commence another action. It must also be remembered that the plaintiff has as yet paid nothing for the land, nor has he obtained the possession thereof. Indeed, he has lost nothing, or at least the only thing which he has lost is the benefit of what he considers to be a very advantageous contract. The only tender of performance which he has ever made or offered to make was the offer to pay $2,000, first to the defendant and afterward into court.

Upon the evidence and the findings of the court below we think this is a close case, and really have doubts as to whether a specific enforcement of the alleged contract should be allowed, or not. In strict law, and by the words of the letters of the parties, we think the parties made a contract; but we also think' that in fact and in equity, the minds of the parties never came together; that they really never agreed to the same thing; and therefore, in equity and good conscience, they did not make a contract, or at least they did not make such a contract as equity should adjudge to be specifically enforced.

The judgment of the court below will be affirmed.

All the Justices concurring.