| Kan. | Jul 15, 1892
Opinion by
Action for specific performance. 'The plaintiff alleges that he purchased of and from the defendants lot 7, in block 36, in the city of Atchison, Kas.; that the contract is in writing, and consists of a series of telegrams between the parties, all of which were made a part •of the petition in the case. Trial was had by the court without a jury, which made the following findings of fact:
“1. On the 15th of September, 1886, Matthew F. Howie and Lydia E. Howie were, and for many years had been, husband and wife.
“2. On said 15th day of September, 1886, said Matthew F. Howie was, and for more than five years theretofore had been, the owner in fee-simple of lot No. 7, in block No. 36, in that part of the city of Atchison known as ‘Old Atchi.-son,’ in Atchison county, Kansas, upon which there was situated a dwelling-house. At that time J. M. Covert was, .and for several months previous had been, agent of said Matthew F. Howie, for the purpose of caring for and renting said house, with others owned by said Howie, and it had been agreed between them that said lot and dwelling should be known in their correspondence as ‘No. 1.’
“3. The plaintiff, desiring to purchase said property, on the 15th day of September, 1886, requested said J. M. Covert to telegraph to said M. F. Howie, from Atchison, Kas., to*341 Georgetown, Colo., where the said M. F. Howie then was, as-follows:
‘Rev. M. F. Howie: Is place No. 1 for sale? State lowest terms, oash.— J. M. Covebt,’
which message was on that day sent to said Howie and received by him, whereupon the same day said Howie telegraphed said Covert as follows:
‘Mr. J. M. Govert: Cash price for No. 1 is seventeen hundred and. fifty dollars. — M. F. Howie,’
which said telegram was received by said Covert on the same day, and the contents thereof communicated to the plaintiff, the plaintiff then informing said Covert that he would take said property at the price named in said telegram, and requested Covert to telegraph Howie as follows:
‘M. F. Howie: House No. 1 sold on terms named. Send authority and papers.— J. M. Covebt,’
which was received by Howie; and on September 16 Howie telegraphed Covert as follows:
‘Mr. J. M. Govert: Make out' deed for No. 1 on terms stated, and forward to me immediately for signature. Mrs. Howie will sign papers-there; money to be delivered to her. The property is lot 7, block 36, O. A. Can forward abstract if wished.— M. F. Howie.’
“On September 19, 1886, the plaintiff filled out a blank deed for said lot No. 7, expressing therein, as the consideration, $2,250, which deed on that day Covert forwarded to Howie, at Georgetown, Colo., for signature. The receipt of that blank deed by Howie was the first notice he had of who the said purchaser of the said property was to be, the plaintiff’s name not theretofore appearing in the correspondence in regard to said lot passing between Covert and Howie. This-deed was not executed by either Howie or his wife.
“4. On October 5,1886, the plaintiff offered to pay to defendant Lydia E. Howie the sum of $1,750, provided that she would execute, together with her husband, the deed prepared by him on September 19,1886, conveying the property to him, the plaintiff, upon the express consideration of $2,250-This the said Lydia E. Howie refused to do, unless the plaintiff should pay the full sum of $2,250, which he declined to do.”
Upon which findings of fact the court reached the following conclusions of law:
“1. The plaintiff’s name as the purchaser of said property not having been disclosed to the defendant Matthew F. Howie*342 by the telegraphic correspondence mentioned in the findings of fact, they, the telegrams, did not constitute a contract for the purchase and sale of said property that can be enforced.
“2. The defendants never having agreed to convey said property by a deed mentioning a consideration of $2,250 upon the receipt of the sum of $1,750 as the consideration, the minds of the contracting parties never came together so as to constitute a contract.
“3. The defendants are entitled to a judgment that there is no cause of action against them, and for costs against the plaintiff.”
The plaintiff moved to set aside the findings of fact and conclusions of law, and for a new trial; which motion was overruled, and a judgment entered in favor of the defendants for costs. Was the plaintiff below entitled to specific performance in the case? We think not. Conceding that the minds of the parties met upon a distinct proposition of sale, which seems very doubtful, it must be, and is admitted, that such proposition was for the sale of the property for the sum of $1,750. But the deed presented by the plaintiff to the defendants for signature set forth $2,250 as the consideration for the property. This deed the defendants rightfully refused to sign, unless the plaintiff paid them the full sum named in the deed. If, as the plaintiff claims, he purchased the property for the sum of $1,750, he could not require the defendants to execute to him a deed acknowledging the receipt of $2,250 as the amount of the purchase-money, since they would be bound by the covenants of warranty therein for that amount should the title fail. The defendants were not asked to execute any other or different deed. The only offer or tender of the purchase-money made by the plaintiff to the defendants was, as disclosed by the fourth finding of fact, coupled with the condition that they would convey the property to him upon the express consideration of $2,250.
If, for the reason already given, the plaintiff was not entitled to specific performance of his alleged contract of purchase, it is unnecessary to consider any further questions in the case.
By the Court: It is so ordered.