| Kan. | Jul 15, 1882
The opinion of the court was delivered by
This action was brought by J. McMurry and C. McMurry, partners as J. & C. McMurry & Co., against E. E. Fletcher and others, to recover from the defendants the sum of $2,000 on a certain contract in writing, dated February 5, 1877, in which contract J. & C. McMurry & Co. were the parties of the first part, and E. E. Fletcher was the party of the second part, and which contract provided among other things as follows:
“ The second party agrees to execute and deliver first parties, or their assigns, a good and sufficient warranty deed conveying the northeast quarter of section 10, in tdwnship 23, south, of range 5, west, containing 160 acres, more or less, and situated in Eeno county, Kansas. Second party further sells all growing crops on said tract;. said tract of land and crops thereon being of the value of two thousand dollars. Said deed to be given on or before November 1, 1877. Should second party fail to convey said tract of land as herein agreed, or within a reasonable time thereafter, the first parties shall be entitled to recover the sum of two thousand dollars, in lieu of said conveyance of said tract of land.”
It appears from the pleadings and evidence, that on September 23,1878, the defendant R. E. Fletcher, with his wife, executed a warranty deed conveying the land mentioned in said contract to J. & C. McMurry & Co. This deed the plaintiffs claim was not sufficient, for two reasons: First, they claim that it was executed to the plaintiffs in their firm-name, and not to them as individuals; and second, they claim that it was not executed within the time required by the said contract.
The first reason we think is not sufficient, for at least two .reasons: First, the contract provided that the deed should be executed to the plaintiffs in their firm-name, that is, to “ J. & C. MeMurry & Co.;” second, the defendant R. E. Fletcher testified on the trial that he tendered the deed, immediately after executing the same, to the plaintiff J. McMurry; and also testified as follows:
“I told him (J. McMurry) that if the form of the deed was insufficient, that I would change it in any way he desired; but he made no objection to the form, but claimed that the contract we had made was broken, and that they would not receive- a deed.”
We must take the testimony of Fletcher as true; for the verdict and judgment were in his favor, and we do not retry the facts. When the case of McMurry v. Fletcher, reported in 24 Kan. 574" court="Kan." date_filed="1880-07-15" href="https://app.midpage.ai/document/mcmurry-v-fletcher-7885223?utm_source=webapp" opinion_id="7885223">24 Kas. 574, was here, it was then thought by this court that said deed was a full compliance with the above-mentioned contract made between the parties on February 5, 1877. The court at that time used the following language:
“In the absence of the contract of February 5, 1878, as the oi’iginal contract (the one of February 5, 1877) recites that the deed should be made to J. & C. McMurry & Co., we suppose Fletcher would have fully performed the conditions of the contract upon this point, by delivering or tendering a deed running to said J. & C. McMurry & Co.”’
The, second reason urged by the plaintiffs for claiming that said deed was insufficient, is, that it was not executed or tendered to them within the time prescribed by their original contract. We think that this reason is not sound, for various reasons. The plaintiffs had the possession of the land, and were receiving all the benefits therefrom, and of course were losing but little, if anything, by the delay. Besides, the contract did not require that the deed should be executed before November 1, 1877, and not even then. All that the contract required was, that the deed should be executed “within a reasonable time thereafter” — that is, after November 1, 1877; and it was, in fact, executed and tendered to the plaintiffs within less than eleven months thereafter. In real-estate transactions time is seldom material. It is seldom of the essence of the contract; and according to the testimony of R. E. Fletcher, which we must take as true, it was certainly not material nor of the essence of the contract in this case. Fletcher testified that at the time the contract was entered into between the parties, he, Fletcher, had no patent for the land, but that he was expecting one to be issued to him soon, and that for that reason the contract was drawn up in the form in which it was drawn; that the McMur.rys did not wish to have a deed executed or to receive the same until the United States patent had been issued to Fletcher; that on February 5, 1878, when the second contract was entered into, the McMurrys extended the time within which the deed should be executed, which was to be soon after the time when the patent should be issued; and that immediately after the patent was issued, which was in September, 1878, he, Fletcher, executed the deed and tendered it to the plaintiffs, as aforesaid.
Under all these circumstances, we certainly think that the deed was tendered within a reasonable time after November 1, 1877. The testimony of Fletcher, however, was disputed by the testimony of some of the other witnesses, but as the find
The plaintiffs claim that the court below erred in some of its instructions. The instructions read as follows:
“ 1. If a deed was not made to the land, or tendered within a reasonable time, then plaintiffs had the right to rescind the contract so far as the land was concerned, and - the two thousand dollars then became due. . . '
“2. What is a reasonable time, is a question of fact for you to determine, and in doing so'you should take into consideration all of the circumstances in the case — the kind of property, the nature of the transaction, and in fact all of the circumstances, because what might be a reasonable time in one case would not be in another; and what is meant by reasonable time is such a time as would necessarily be necessary, and as would be thought necessary in contracts similar to the one in the case. It does not mean the longest or shortest time that would possibly be necessary if a man by reason of accident, misfortune or carelessness should require a long time. If such accident, misfortune or carelessness were unusual in transactions of a like nature, then such time would be unreasonable. So if a man by reason of sufficient skill or luck should require a much shorter time than would be usual in such transactions, this would be an unreasonable time — that is, it would not be sufficient to enable the average person to fulfill the contract. A reasonable time, then, is such time as would ordinarily and generally be sufficient.
“3. At the time of the tender of the deed by Fletcher to McMurry, if a reasonable time had passed, then McMurry was not bound to accept it, but might then sue for the recovery of the two thousand dollars in money; but if the tender of said deed was within a reasonable time, then the McMurrys were bound to accept it, and cannot recover in this action.
“4. If there was any extension of time by the parties when the note was given for $500, then such extension of time must be considered. If there was no extension, and if you further find that defendant Fletcher did not tender a deed on or before November, 1877, (the time specified in the original*345 contract,) the plaintiffs could refuse to take a deed afterward, and make a tender of the land back to Fletcher, and could bring the action and recover the two thousand dollars, with interest at seven per cent, from the date.”
It is claimed that these instructions are erroneous, because the court below instructed the jury that a reasonable time in this case was one of fact for the jury to determine. We think this instruction is correct. Where the facts upon which the reasonable time is founded are all admitted, or clearly and conclusively proved, such reasonable time is generally a question of law; but where the facts are disputed, then such reasonable time becomes a question of fact. In this case we think it was a question of fact, and taking the evidence of Fletcher as true, we think this fact was determined correctly by the jury. There was evidence tending to show that the plaintiffs offered to redeliver the possession of the land to Fletcher; but there was no evidence introduced showing that he accepted or took such possession of the land, and evidently he did not. The authorities referred to, will be found in counsel’s briefs. We perceive no error in the rulings of the court below, and therefore its judgment will be affirmed.