89 Kan. 874 | Kan. | 1913
These appeals relate to the same transaction. The question for decision is whether demurrers to the petitions were erroneously sustained.
The principal action is for specific performance of an agreement to purchase land. The other is for damages against the bank as custodian of a check given as an advance payment made upon the land. An action was first brought against the vendee and custodian jointly. Afterwards a separate action was instituted against the vendee and he was dismissed from the first suit.
The petition in the last action sets out a written contract dated November 18, 1910, wherein the vendor, the cement company, party of the first part, does—
“Hereby sell to party of the second part for the consideration of Ten Thousand Dollars ($10,000.00) lands described (then follows description containing 200 acres more or less).
“Party of the second part does herewith deposit a certified check for Five Hundred Dollars ($500.00) as earnest money payable to The Monarch Portland Cement Company the receipt of which is hereby acknowledged to be placed with this contract in escrow in the Cunningham State Bank, leaving a balance of Nine Thousand and Five Hundred Dollars ($9,500.00). Party of the second part agrees to pay cash on delivery of deed and abstract showing a good and merchantable titls. . . .
“The above sale is subject to the approval of the Monarch Portland Cement Company of Humboldt, Kansas. In event this contract is not approved by the Monarch Portland Cement Company the five hundred dollars ($500.00) check above mentioned is to be delivered to the party of the second part and this contract to be null and void.”
The contract is signed by Washburn, the vendee, and by an agent for the vendor. The petition alleges that a certified check for $500, payable to the plaintiff, was deposited in the bank with the contract, as earnest
“I . . . note that we are to receive $50.00 per acre for this land, of which $500.00 has already been paid into the Cunningham State Bank, as earnest money and the balance $9500.00 will be available on the delivery of the deed and abstract, showing good merchantable title. ...
“There are two mortgages involved in these transactions, both given by A. H. Nossaman to The Warren Mortgage Company of Emporia, Kansas; one is for $4000.00 . . . and the other one is for $3000.00. . . . Each of these mortgages is dated October 29, 1906, and will both’ be due on the 1st day of November, 1911, and each draws interest at 5 per cent.
“We have already taken up the commission mortgages, and I am writing the mortgage company to-day to. ascertain whether or not we can arrange for the release of the land which we are now selling, and upon what terms, etc. The interest was made payable yearly in both instances and we have just paid the interest for 1910, (November 1) which leaves the matter in bad shape in that respect, provided the mortgage Company are not disposed to accommodate us/’ .
In the action against the bank it appears that the contract and check were placed in its custody. The check was so deposited as earnest money payable to the cement company. It is alleged in the petition that after the contract was approved by the company and became binding and effectual the plaintiff demanded the check, and that the demand was refused. The plaintiff claims that this amounted to a conversion.
The contract recites that the party of the second
As the contract, although signed by the agent, was to become operative only when approved by his principal, the check was not presently delivered but. was deposited with the contract in the bank. But having been given as earnest money it became payable when the contract went into effect. Otherwise it would not be earnest money at all, or an advance payment in any sense.
The only way in which the plaintiff could obtain the advance payment or earnest money was through possession of the check and its presentment for payment. This possession was denied, and therefore a cause of action accrued.
If facts exist constituting a defense in either case they do not appear upon the petitions.
Both causes are remanded with directions to overrule the demurrer in each case.