83 P. 970 | Kan. | 1905
The opinion of the court was delivered by
John J. Mickley agreed in writing with the J. I. Case Thrashing-machine Company to purchase a thrashing outfit from it, the contract containing this provision: “In case party [Mickley] goes to Oklahoma and buys land [he] has the privilege of countermanding this order.” The company shipped the machinery, and upon Mickley’s refusal to accept it sued him for damages, alleging a breach of the contract. He defended upon the ground that he had countermanded the order, and was justified in doing so by the fact that he had gone to Oklahoma and bought land there. Upon a trial the court directed a verdict for the defendant, and gave judgment thereon, from which the plaintiff now prosecutes error.
The plaintiff claims that upon the face of the contract the condition that the defendant should go to Oklahoma and buy land could only be met by his permanently removing to Oklahoma and buying a farm there. In support of this claim it is argued that the word “land,” when employed, as it was in this instance, without qualifying words, means at least presumptively agricultural land, as distinguished from town lots or blocks. To this contention we cannot agree. The use of the word “land” as a generic term covering real property of any character is sanctioned by custom and by authority. In its general sense it is defined by Webster as “any portion, large or small, of the surface of the earth, considered by itself, or as belonging to an individual or a people, as a country, estate, farm, or tract.” As a law term the same work thus defines it: “Any ground, soil or earth whatsoever, as meadows, pastures, woods, etc., and everything annexed to it, whether by nature, as trees, water, etc., or by the hand of man, as buildings, fences, etc.; real estate.” It is used throughout the Kansas statutes as a synonym of “real estate” and “real property.” (Gen. Stat. 1901, § 7342, subdiv. 8.) “ ‘Land/ in its legal signification, comprehends any grounds, soil or earth whatever.” (5 Words & Ph. Jud. Def. 3975.)
The contract did not attempt to specify the quantity of land that defendant was to purchase in order to obtain the right to countermand his order. If he had bought an unplatted tract of ground equal in extent to block 8 in Kingfisher it could not be denied upon
It is suggested that the context shows that arable land and not a town block, and a permanent removal to Oklahoma and not a mere journey thither, were within the contemplation of the parties to the contract, inasmuch as it can be inferred that the defendant inserted the clause in question for his protection in case he should cease to have occasion to use the machinery by reason of his buying a farm elsewhere and going to reside upon it. It may equally well be supposed, however, that the clause was intended to release him in case his contemplated purchase of any Oklahoma real estate should divert enough of his resources to another channel to make it inexpedient for him to invest in this thrashing outfit so large a sum as he could otherwise afford.
Evidence was offered for the purpose of showing that the contract should be given the interpretation for which the plaintiff contends. That upon which the greatest reliance seems to be placed was, in substance, that in a conversation which was had after the contract had been entered into, between the defendant and a representative of the plaintiff, the latter said that the former would not be relieved from his obligation to take the machinery unless he should buy a farm in Oklahoma, and that afterward the defendant inquired of a third person whether he thought the purchase of a town lot or block there would be sufficient to effect his release. Neither this evidence nor any other that was offered had any tendency either to explain away the natural effect of the language of the agreement by exhibiting the circumstances under which it was made or to show that the parties had given it an interpretation different from its obvious meaning.
