110 Kan. 10 | Kan. | 1921
The- opinion of the court was delivered by
On April 12, 1913, James E. Ely, the owner of a .quarter section of land, entered into a written contract with C. Jones for its sale to him for $5,600, to be paid by delivering to the seller each year the proceeds of two-thirds of the erops, which were to include a hundred acres of wheat. On July 29, 1914, Ely sued Jones, causing an attachment to be issued and levied upon personal - property, his petition alleging that on July 23, 1914, Jones had repudiated and canceled the contract, thereby damaging the plain
The jury found specifically that the contract was rescinded by agreement. The plaintiff contends that the agreement for rescission, not having been in writing, was enforceable only in case it had been fully or partially performed. (See Ely v. Jones, 101 Kan. 572, 168 Pac. 1102; 25 R. C. L. 579.) The défendant’s evidence was that it had been agreed that’hé should give the plaintiff two-thirds of the proceeds of the wheat and turn the place bver to him, and be released from the contract. All that was necessary to the full execution of this new agreement on the part of the defendant was that he should pay two-thirds of the wheat money to the plaintiff and relinquish his claims to the property. The plaintiff contends that the wheat money which was given him was received under the original contract for the sale of the .land, and not under any later agreement. This is the vital point in "his case, and .we think it untenable for this réason: In suing the defendant for damages on the ground that he had repudiated and canceled the contract for the sale of the land the plaintiff elected to treat that contract as at an end and to rely solely upon his remedy in damages. It is true he declared in his petition that he had at all times been and still was ready and willing to perform the things required of him' under the contract, but in asking to recover once for all the. loss he had sustained by the defendant’s refusal to carry out the contract he chose to treat it as terminated — to retain the land and' require the defendant to pay him the value of his bargain — the difference between the agreed price and what the property was worth on the market. Having taken that position he could not subsequently reopen the matter for the purpose of receiving a payment on the contract and then continue the prosecution of his claim for damages. “Upon election to treat the renunciation of the contract by the other party, whether by declaration or by acts and conduct, as a breach of the contract,
The plaintiff requested an instruction as to the necessity of the defendant proving part performance of the agreement to rescind. Because of the considerations already stated we regard the refusal as nonprejudicial. Complaint is also made because the court declined to submit to the jury a number of additional special questions, some of which are immaterial because of the view we have taken of the issue of part performance; none of the others is of such importance as to make its rejection a ground of reversal. A new trial is also asked on account of what is alleged to be the misconduct of counsel for the defendant. The trial court’s ruling on this matter must be regarded as conclusive because of its superior opportunity to form a just opinion of the character and effect of the conduct complained of.
The real controversy between the parties was one of fact— whether there had been an agreement to rescind the contract for the purchase and sale of the land. The jury having found in favor of the defendant on this issue we discover no sufficient reason for setting aside the judgment based on that finding.
The judgment is affirmed.