86 Kan. 730 | Kan. | 1912
The opinion of the court was delivered by
This is an action to recover an advance payment made on a contract to purchase land. A demurrer to the plaintiff’s evidence was sustained and he ■appeals.
The agreement was negotiated between the appellant and an agent for the appellees who signed it for them. The evidence of the appellant tends to prove the fol
The material parts of the contract were:
“Parties of the first part hereby agrees to sell to party of the second part, for and in consideration of $4000.00, as follows: $200.00 in cash for which this is a receipt, and $800.00 to be paid on or before Jan. 1, 1910, and a mortgage given by E. R. Sherwin and wife, Minnie M. Sherwin to parties of the first part for $3000.00 for 5 years drawing 6% interest per annum, interest payable semi-annually, the following described property to-wit: . . . Said first party agrees to pay the taxes for 1909, and to furnish said second party a warranty deed, clear [of] all incumbrance, and an abstract of title showing the same.”
The appellant called frequently upon the agent to inquire whether the contract had been returned. In October following the date of the agreement the agent informed the appellant that it had been returned and the appellant then asked for the abstract for examination but it was not furnished. On December 28, the agent called the appellant by telephone and said he was ready to complete the deal. Thereupon the appellant and his wife proceeded to the agent’s office where the agent presented a nóte and mortgage for the deferred payments, ready for signatures, and requested Mrs. Sherwin to sign the papers while her husband should examine the abstract which the agent said was in his safe. The wife proceeded to sign the papers, but the abstract could not be found in the office, the signing for that reason was not completed, and the conference was ended for that day. On January 1, the appellant again asked “the agent for the abstract and was told that he did not
“I told him that I wanted it straightened up or I wanted my money.
“Q. What did he say? A. He said that he would give me my money back.”
No offer was ever made by the agent or by any one for the appellees to furnish an abstract. None was shown to the appellant or to any one for him until it was shown to his attorney at the attorney’s request in September, 1910. It had not been brought down to a date later than the year 1907.
On January 5, 1910, the appellant purchased and moved to another farm, and before commencing this action on September 30, 1910, demanded the return of the $200 paid on the contract.
The appellees urge in support 'of the ruling sustaining the demurrer that a tender of the $800 to be paid on January 1, and a note and mortgage for the deferred payments duly executed, was a condition precedent to a recovery of the money advanced. While it is often said that a tender of performance is’ necessary in such cases, it is not meant that a party must make a formal legal tender by producing cash and securities in every case, regardless of circumstances. If useless or vain it
“No formal tender to the defendants before the action was begun was made. ... If the defendant puts himself in an attitude of default tender to him is unnecessary. It could serve no purpose so far as he is concerned and would be a mere formality. Equity does not insist on purposeless conduct, and disregards mere formalities.” (p. 581.)
In the same case it was said that the law gave the purchaser time to examine the abstract. In this case the appellant was not bound to part with his money until the abstract was at least presented for his examination, which was never done. An offer to perform made in good faith by a party ready and able to do so is all that ought to be required in such a situation, whether the- action be for specific performance or for recovery of money advanced. Having made such an
The judgment is reversed with directions to overrule ■the demurrer and proceed with the case.