Sanford v. Bartholomew

33 Kan. 38 | Kan. | 1885

The opinion of the court was delivered by

HoetoN, C. J.:

It is alleged that the court erred in finding the amount due from plaintiff to defendant on March 18, 1881, to be $393.10. An examination of the record satisfies us, however, that we must accept the special findings of the trial court as conclusive. On page 31 of the record appears “that none of the evidence is in full.” On page 32 of the record is the following: “ This was not all the evidence as to taxes. The evidence showed that the amount due from Sanford to defendant at the time of the commencement of the suit and tender, was what the court found, to wit, $393.10.” On page 33 is the following: “ This transcript does not contain, and does not purport to give, all the evidence in the case. There was a good deal more evidence given in the case by both sides than is set forth in the transcript, to sustain the special findings of the court.” The judge, in certifying to the case-made, used the following language: “I hereby certify that said case-made does not contain all the evidence in the case on many points at issue between said parties, that was presented to me on the hearing.”

The question therefore arises, whether the plaintiff was entitled at the commencement of his action to a deed of conveyance from the defendant when he tendered only $381.50, while in fact there was due $393.10. We think not. Before the plaintiff can maintain his action to compel a deed, he must have tendered the amount due on the contract. (Iles v. Elledge, 18 Kas. 296.)

This conclusion disposes of the case, and therefore the judgment of the district court must be affirmed.

All the Justices concurring.