113 Kan. 482 | Kan. | 1923
The opinion of the court was delivered by
This was an action to recover a partial payment on the contract purchase price of a farm.
Plaintiff bought a Douglas county farm from defendant for $1,000 in cash and $8,000 which he was to pay on or before January 1, 1921. He took possession of the farm buildings and part of the land in August, 1920, and made some improvements thereon. In December, 1920, plaintiff left Douglas county for business and pleasure, .leaving some cattle and horses on the premises. He also left some oats in a granary thereon. Shortly afterwards plaintiff’s father and
An advisory jury and the trial court made findings of fact as above narrated, and 'the court deduced therefrom certain conclusions of law:
“1. The plaintiff did not abandon the possession of the farm.
“2. The possession of the farm by the defendant does not amount to a rescission or cancellation of the contract.
“3. The plaintiff is not entitled to a return to him of the $1,000 paid by him or the value of the improvements placed upon the real estate by him.
“4. A judgment should be entered that if the plaintiff- shall tender to the defendant a sum of $8,000 oni or before August 1, 1922, he shall be entitled to performance of the contract according to its terms.”
The court gave judgment accordingly, and the plaintiff’s main contention is the judgment should have been in his favor.
Plaintiff argues that the reentry of defendant was in effect a rescission of the contract. Not necessarily so. Plaintiff was in default of payment. Defendant could not know for certain whether plaintiff would return; he could not know whether plaintiff would ever go further with the contract — whether he ever would pay. So, out of prudence, he reentered. Mayhap he reëntered in reliance on what this court said in the analogous case of Morris v. Derr, 55 Kan. 469, 40 Pac. 908:
“That the mere taking possession of the land by the defendant after plaintiff’s default in payment of the note did not of itself operate as a rescission of the contract, nor give to the plaintiffs the right to recover the $2,000 paid.” (Syl.)
The judgment is affirmed.