87 Kan. 319 | Kan. | 1912
The opinion of the court was delivered by
Plaintiffs sued George A. Deal and wife to recover a commission on a sale of real estate. While the action was pending Mr. Deal died and the action was revived against his wife as administratrix. Plaintiffs then filed an amended petition. There was a trial and judgment for plaintiffs in the sum of $2000. The administratrix appeals.
The amended petition alleged that George A. Deal in his lifetime owned a ranch in Finney county consisting of twenty-two quarter sections of land, and verbally agreed with ■ plaintiffs that if they would find a purchaser at $13,000, to be paid either in cash or upon such terms as should be accepted by him, they should have for their commission whatever sum the- ranch sold for in excess of that sum; that they found a purchaser who agreed to pay and was' able and willing to pay the sum of $15,000 for the ranch upon terms which Mr. Deal accepted, but that he afterwards refused to complete the sale. The petition asked judgment for $2000.
The purchaser, who was a stranger to Deal and met the latter there for the first time, testified that the price was to be $14,000 for twenty-one quarters or $15,000 for twenty-two quarters; that Deal promised to make the title good “for at least twenty-one quarter sections” ; that he understood he was to pay $200 the next morning when the papers were to be drawn, and was to have a few days to send the $1800 to make up the $2000 first payment, and was to pay the balance on or before March first; that he was ready to pay $200 down, $1800 in a few days, and the balance by March first, and that, in fact, he had only $200 with him to pay on the contract, but expected and was able to produce the balance in a few days. After Deal consulted with his attorney next day, he refused to make any contract for the sale of the land. Whether-Deal ever, consented to the terms as understood by the purchaser is extremely doubtful from the evidence. There is also .ground for the defendant’s contention that even though
The evidence was competent as an admission against interest and should have been admitted. It was not claimed that Mrs. Deal had anything to do with the making of the contract. She was defending as administratrix. After her husband’s death an amended petition was filed which alleged a different state of facts in respect of the terms of the contract and the number of quarter sections which were to be conveyed. The difference in the averments as to the number of quarter sections was very material’in connection with the purchaser’s testimony to the effect that Mr. Deal agreed to make good title to “at least twenty-one quarter-sections.” An abandoned pleading may always be offered in evidence against a party, subject to any explanations he may desire to make in respect thereto. It is competent as an admission or statement of a party or as made on his authority. In this case the original petition contained statements certainly ■ material to the issues and it was error to exclude it. (Arkansas City v. Payne, 80 Kan. 353, 354, 102 Pac. 781; Bank v. Edwards, 84 Kan. 495, 498, 115 Pac. 118; Every v. Rains, 84 Kan. 560, 565, 115 Pac. 114.)
The judgment is reversed and a new trial ordered.