85 Kan. 465 | Kan. | 1911
The opinion of the court was delivered by
The first appeal is from an order overruling a demurrer to a petition for specific performance of an agreement for the conveyance of real estate. The second appeal is from the final judgment for the plaintiff upon a demurrer to the evidence in the same action. Both appeals present the same questions.
The agreement relied upon by the appellee was signed on the part of the appellant by his agents in his name, but it is contended that their appointment did not confer authority to do so. The authority of the agents was in writing, and declares that “I . . . F. M. Claudel . . . do hereby authorize Mahin & Mahin . . . to bargain and sell in my namei’ the property in question, stating the terms of sale. It is argued that this instrument only authorized the agents to find a purchaser, and did not empower them to conclude a contract. Whether a mere authority, expressed only in the words “to sell” or other similar expressions, authorizes the execution of a contract by a real-estate broker, binding his principal to convey, is a. question upon which decisions in other jurisdictions are in seeming disagreement (Brown v. Gilpin, 75 Kan. 773, 90 Pac. 267), but it was held in the case cited that the inquiry to be determined in each doubtful case is whether the owner has shown an intention that the agent should act merely as an ordinary broker, or that he should go further and effect a binding contract of sale. In this case the instrument appoint
It is next insisted that the contract executed in pursuance of the authority so given to the agents is not enforceable against the vendor because it contains no obligation on the part of the vendee, and that there is lack of mutuality of obligation and remedy. The contract, after reciting the names of the parties, description of the land, the sale price, and terms of payment, reads:
“Party of the first part is to convey said land by warranty deed and furnish an abstract of title showing said, land to be free and clear of all incumbrance and title perfect. Party of the second part is to take said lands subject to the lease now on the same for the year 1906.”'
The covenant to convey and the covenant to take-create mutual obligations. The covenant that the vendee will take the land implies that he will take it upon the terms upon which the vendor agrees to sell it, but subject to the lease as stated in the concluding words. This qualifying phrase does not abrogate or limit the obligation to take and pay for the land according to the terms stated, upon which the vendor agreed to convey it, but imposes an additional condition. The appellee argues that if it should be held that the instrument contains no covenant on the part of the vendee, still, having; accepted its terms, tendered performance on his part,,
“A further argument is made that the contract is wanting in mutuality,' but as the plaintiff alleges full performance on his part this defense is not open to the defendants.” (p. 493.)
The question is also considered in Water-supply Co. v. Root, 56 Kan. 187, 42 Pac. 715; Burnell v. Bradbury, 67 Kan. 762, 74 Pac. 279; Zelleken v. Lynch, 80 Kan. 746, 104 Pac. 563; Painter v. Fletcher, 81 Kan. 195, 105 Pac. 500, and Wiley v. Hellen, 83 Kan. 544, 112 Pac. 158. The appellant insists that these and other decisions of this court to the same effect should be distinguished for various reasons, among others that this contract was signed by both parties and that there was no such performance by the vendee that an appeal to conscience can be made as in the Zelleken case. It is unnecessary to review these decisions and determine their application here, for, as already stated, this contract expresses sufficient mutuality of obligation to bind both parties.
It appears from the special findings that at the time the contract of sale was signed the vendee delivered his check for the advance payment of $3000 to the vendor’s agents, who thereupon presented the contract and check to the vendor and told him of the sale. Being then informed that Golden was the purchaser appellant declared that Golden should not have the land, but that if the sale had been made to other parties they might have it. He made no objection to the check, and no ■other objection to the contract, but refused to go further with the transaction only because he objected to the purchaser, and upon the offer of his agents to produce the money, replied in effect that this would make no difference, that Golden should not have the land. The check was good, the appellee having more than the
This action was commenced three years and 'fifteen days after the appellant refused to perform the contract, and the appellant insists that as the value of the land had greatly increased meanwhile, the contract should not be enforced because of this delay. We find no evidence of any increase in value in the abstract although it is stated in the brief of appellant that such evidence was given. It is argued, however, that the court should take judicial notice of the general advance
“Each case must necessarily be governed by its own circumstances, since, though the lapse of a few years may be sufficient to defeat the action in one case, a longer period may be held requisite in another, dependent upon the situation of the parties, the extent of their knowledge or means of information, great changes in values, the want of probable grounds for the imputation of intentional fraud, the destruction of specific testimony, the absence of any reasonable impediment or-hindrance to the assertion of the alleged rights, and the like.” (p. 428.)
A comprehensive statement is found in 36 Cyc. 730b, as follows:
“The broad principle, as applied to .other equitable remedies, is generally recognized, that a delay which neither evidences an abandonment of right, nor operates to the prejudice of the other party, is not a defense. A number of specific performance cases have expressly announced and applied the same rule; and they are supported by the statements and reasoning of a much larger number, in which denial of relief is based upon the injury resulting from the delay.”
No effort to declare with exactness the conditions upon which this defense will be sustained can be entirely successful, for the endless variety of circumstances must always influence the discretion of the court in determining the equity of a given case. The element of increase or decrease in values is a factor, especially where the property involved is subject to rapid and frequent changes in value, as in the case of stocks, mining property and the like. (Rogers v. Van Nortwick and others, 87 Wis. 414, 58 N. W. 757; Johnston v. Standard Mining Co., 148 U. S. 360, 370.)
It was said in Harris v. Defenbaugh, 82 Kan. 765, 109 Pac. 681:
“Where, by reason of acquiescence and long lapse of time, there is a possible loss of testimony or increased difficulty of defense, the doctrine may be applied in the discretion of the court; but laches does not consist in the mere lapse of time.” (p. 770.)
Taking into consideration the various elements already referred to and all the circumstances affecting the equities of the case, specific performance is decreed or denied in the exercise of sound judicial discretion.
“Whether specific performance of the terms of a mutual contract shall be decreed, under all the facta and circumstances which go to make up the equities between the parties, rests largely' in the sound discretion of the court.” (Reid v. Mix, 63 Kan. 745, syl. ¶ 1, 66 Pac. 1021.)
The abstract shows a discrepancy in the description of one of the tracts between the instrument of agency and the contract of sale, and it is argued that the decree is erroneous because it covered land not described in such instrument of agency. An examination of the petition on which the case was tried reveals the fact that the mistake is in the abstract of this instrument attached as an exhibit to this petition.
The judgments appealed from are affirmed.