| Kan. | Jul 15, 1892
The opinion of the court was delivered by
It appears that on June 29, 1887, John E. Gardner and Thomas W. Scott entered into a written contract, whereby Gardner agreed to sell and convey by warranty deed, within 30 days, a certain tract of land in Ness county, “ free and clear of incumbrances of whatever nature or kind,” and Scott agreed to pay Gardner therefor $16,000, one-half on the delivery of the deed, and the remainder in three equal annual installments, and it was further agreed by the parties, as follows:
“And for true and faithful performance of all and every*568 of the covenants and agreements above mentioned, said parties bind themselves each to the other, in the penalty sum of $1,000, as liquidated damages to be paid by the failing party.”
At the time of this agreement there were two mortgages on the land, amounting in the aggregate to about $1,200. About the time of this agreement Gardner became sick with typhoid fever, and therefore could make but little effort to accomplish the payment of these mortgages, or to procure a release thereof within the 30 days, but possibly if he had been well he could' not have done these things,, for the reason that the mortgages were not to become due for three or four years • and it does not appear that they have yet been paid, satisfied, or released. Within the 30 days, however, Gardner and wife executed a general warranty deed for the land, purporting to-convey the same free and clear from all incumbrances, and tendered the deed to the assignee of Scott, to wit, Adam Rinard ; but Rinard refused to accept the same. Whether the failure on the part of Gardner to procure an extinguishment of these mortgages within the 30 days allowed, and to convey the land to Scott,or his assignee, free and clear from all incumbrances, was a benefit or an injury to either Scott or his assignee, is not shown. And whether Scott or his assignee complied with the conditions of the agreement on their part, it is hardly necessary for us now to consider. We might say,, however, that Scott’s assignee offered to Gardner a draft for $8,000, aud three promissory notes for the remainder of the purchase-money, and no objections appear to have been made by Gardner to this proposed manner of paying for the land.
We shall not now consider the question as to whether Scott or his assignee fulfilled their part of the agreement, nor-shall we now consider any other question going to the merits of the case, for the reason that the defendant in error has raised in this court the preliminary question that no copy of the plaintiff’s pleading upon which the case was tried in the-court below has been brought to this court, and that what
When the court below sustained the defendant’s demurrer to the original petition, the ease was virtually ended .upon that petition. The case could not be tried, and of course was not tried, upon that petition; and as neither the amendment thereto nor any amended petition is contained in the record, we cannot tell what was tried. We cannot know what were the issues; what the allegations of the amendment were; or how much the plaintiff admitted or denied in his pleading, we cannot tell; and therefore we cannot tell whether the court below erred or not when it sustained the defendant’s demurrer to the plaintiff’s evidence. Upon the pleadings and the evidence, the decision of the court below may have been absolutely correct; but whether it was or not we cannot tell. The decision of this preliminary question raised by the defendant in error disposes of the entire ease in this
The judgment of the court below will be affirmed.