Shoop v. Burnside, 98 P. 202

98 P. 202 | Kan. | 1908

The opinion of the court was delivered by

Porter, J.:

In the view we have taken of this case there are but two findings of fact which we think require comment. The twenty-third finding is as follows:

“That the actual market value of the land in controversy during the latter part of September, 1905, can not be found and stated by the court from the testimony introduced, but that it was worth something more than $1000 at or about that' time.”

While it may have been difficult for the court to find the actual market value of the land at the time the contract was made, we think the evidence would have warranted a finding that its market value was in the neighborhood of $2000 at the time. The eighteenth finding is as follows:

“That the influence of Mrs. Calhoun upon the defendant, if any, by reason of her recommendation that .she sell for $850, was of no effect, as the defendant refused to accept that amount and testified that she acted •upon her own judgment in the matter.”

This finding is based upon a mistaken inference of the court from a fact in evidence and a misconception or • oversight with respect to the testimony. Because defendant refused to accept the offer of $850 it by no means follows that the advice of the granddaughter had .no effect as an inducement for her offer to take $1000. It would, in our opinion, naturally have considerable influence in determining the amount she would ask. As to the second reason suggested by the court, it is true "that the defendant stated that she acted on her own .judgment in the matter, but her whole testimony must 'be taken together, and she testified as follows:

“Ques. Mrs. Shoop, you may state what influence 'these letters you received from your granddaughter had upon you in regard to the sale of this land? Ans. Well, she advised me to sell it, and told me she thought it was a good price for it, and me not knowing anything ;about it it had some influence for me to sell it.

“Q. State whether or not you relied upon these suggestions as contained in these letters from your granddaughter. A. Yes, sir.”

To say that the letters of the granddaughter had no •effect as an inducement for defendant to fix her price at $1000 is to leave out of account the inferences and presumptions which naturally arise under the circum■stances. Finding No. 23 should have been modified, .and finding No. 18 set aside.

Specific performance is not a matter of right, but of •equity. A contract to sell or purchase may be regularly made, yet specific performance will not follow as a matter of course. (Fowler v. Marshall, 29 Kan. 665; Bird v. Logan, 35 Kan. 228, 10 Pac. 564.) The application is addressed to the sound legal discretion of the court, and courts will be governed by the facts and circumstances of each case. (Reid v. Mix, 63 Kan. 745, 66 Pac. 1021, 55 L. R. A. 706; Viele v. Troy and Boston R. R. Co., 21 Barb. [N. Y.] 381.) Although the proof might come far short of a showing sufficient to authorize the court to grant a rescission or cancelation of a contract, still on the same proof equity will often refuse to compel performance. For instance, a court of equity will not decree a rescission of a contract except for fraud or mistake. Inadequacy, improvidence, surprise and hardship are not sufficient, yet the presence of these, amounting to unfairness, even without fraud or mistake, will prevent a court of equity from ordering performance. While inadequacy of price is not sufficient of itself to avoid a decree for performance, it is a circumstance which will be taken into consideration with all the facts in determining whether a court of equity is called upon to afford relief. The opportunities of parties to know the true situation may always be taken into consideration, although it can not be said that it is the duty of the purchaser in each instance to inform the seller of the reasons for his desire to purchase nor the facts and circumstances which in his opinion enhance the value of the land.

If in this case Burnside had himself written to the defendant offering her $850 for the land, without expressing any opinion as to its value or his ability to purchase other land, and she had replied offering to take $1000, and he had accepted, an: entirely different case would be presented, and his failure to inform her of the new conditions and the inadequacy of the consideration might not be sufficient grounds to prevent specific performance. The contract in this case was made with a woman eighty years of age, living at a great distance from the land. For eight years she had not been near the land, and was wholly ignorant of what Burnside well knew — that there had been a sudden rise in the value of all farm lands in that vicinity. Instead of writing to her directly or employing a person in no way connected with her to act as his agent, he procured the granddaughter to write the letters for the purpose of inducing the defendant to consent to the .sale of her land at about one-half of its actual value. The letters of the granddaughter contained no suggestion of any interest on the part of the writer other ■than what the defendant might have naturally assumed to be based on a desire to have her make a good bargain. Defendant was not informed that her granddaughter was to receive $50 in case there was a sale. And the •statement in the letter of September 19 that the buyer would not go any higher than $850 was misleading, as he was in fact expecting to pay $50 more.

It is not necessary to say in this case that Burnside was guilty of fraud. The doctrine is well established that before a court of equity will enforce performance of a contract of this kind it must appear to have been fairly entered into without any sort of advantage or imposition — must, in other words, appeal to the conscience of the court and compel its discretion, The ■situation of the parties and all the facts and circumstances of this case do not so appeal to our discretion, nor, in our opinion, warrant a decree compelling the defendant to convey. As two of the findings, however, •can not stand another trial will be necessary.

The judgment is reversed and a new trial ordered.