The opinion of the court was delivered by
Johnston, J.:
This was an action by Hodges & White to recover damages from Geo. A. Farnham for his refusal to •convey, a tract of land in Woodson county, in violation of a •contract made between them. The contract provided that Farnham should convey a farm in Woodson county for a •stock of drugs and fixtures which Hodges & White had in a store at Paola. An inventory of the stock and fixtures was to be made, and the value determined according to certain rules, which were stated, and the farm for which they were to be exchanged was valued at $3,400, upon which there was an •existing incumbrance of $700. Hodges & White agreed to pay Farnham the difference, in cash, between the values of "the properties exchanged, if any difference was found to exist. The farm was inspected by Hodges & White and found to be satisfactory, and they proceeded with the inventory of the stock of drugs until it was found that the value of the stock and fixtures exceeded the value of the farm, when Farnham declined to complete the contract and exchange, and Hodges & White immediately brought this action, claiming that they were damaged in the sum of $700 by the failure to convey in compliance with the' contract.
*780On the trial, it appeared that the contract was not complete or binding until Hodges & White had inspected the land and found it to be satisfactory to them. It further appeared that it was the expectation and understanding of the parties that, the valuation placed upon the land would exceed the valuation of the goods, and hence the provision in the contract that Hodges & White would pay the difference in cash. It was. shown on the trial that Farnham was a married man, and with his wife and children resided upon the farm which he was to convey in payment for the stock of drugs, as a homestead. His wife had not signed the contract agreeing to convey the same, and the court instructed the jury that, if they found that the farm was the homestead of Farnham and family, the contract was void, and there could be no recovery upon it. As there was no dispute on that point, the finding-of the jury was in favor of the defendant. The consent of the wife was essential to a valid contract for the conveyance of the homestead. Before Hodges & White had accepted the-provisions of the contract by the approval of the land, they discovered that the farm was occupied by Farnham and his-family as a residence, but the wife was not then asked to sign the contract, and never attached her signature to the same. No deception appears to have been practiced on Hodges & White with respect to the occupancy or homestead character of the premises proposed to be conveyed, and, as there was-not that joint consent of husband and wife necessary to the alienation of the homestead, the contract was absolutely void,, and there could be no recovery for its violation. The facta bring the case fairly within the rule stated in Thimes v. Stumpff, 33 Kas. 53. There was a blank deed signed by the wife of the defendant, but it was never completed nor delivered, and although the document is not a part of the record,, enough appears to show that if it was included in the record it would not strengthen the plaintiffs’ case.
After the court had indicated its purpose to instruct the jury to find for the defendant in case they found the farm to-be a homestead, the plaintiffs asked leave to amend their peti*781tion by stating more particularly therein the delivery of the stock of goods to the defendant, the sale of a portion of the stock, and the subsequent surrender and abandonment of the same, and that by reason of the abandonment of the stock it had been depreciated in value 25 per cent., by reason of which they were damaged in the sum of $700. The court denied the motion to amend, holding that it was clearly an action on the contract. Complaint is made of this ruling; but it appears that no exception was taken to the same. It is true, as the court states, that the pleadings and testimony show that it •was an action upon a contract. While it may have been possible to have amended the pleadings so as to have stated a liability against Farnham, it was a matter within the discretion •of the court, and the denial of permission to amend cannot be held to be an abuse of the discretion vested in the court. It is only an abuse of discretion that is available as an error.
The judgment of the district court will be affirmed.
All the Justices concurring.