55 Kan. 646 | Kan. | 1895
The opinion of the court was delivered by
The first point to which our attention is called is the insufficiency of the petition. It contained no averment that a deed conveying a good title to the land, or that any deed, was ever executed by the Gabes to the purchasers, or that before the commencement of the action or at any other time the Gabes had tendered the purchasers a conveyance of the premises purchased, nor did it contain any excuse for the failure to tender a deed. The obligations of the contract are mutual and dependent, and before one party can enforce performance it must appear that he is not himself in default. The Gabes might have enforced the collection of all the installments preceding
“All the parties to the papers must perform at the same time, neither being under any obligation to trust the other. As it appears that Elledge has neither delivered nor tendered a deed, he cannot maintain an action for the purchase-money embraced in the note sued on.” (Iles v. Elledge, 18 Kas. 296.)
In a later case of the same character and where the agreements of the parties were held to be mutual and dependent, it was said that —
“Neither party can put the other in default, save by a performance or an offer to perform on his part. No action can be maintained on the note, not even to adjudge it a lien, until the plaintiff has offered to convey the premises. . . . At any rate, before either party can justly summon the other into court and impose the expense and annoyance of a suit, he should at least tender performance on his part.” (Morrison v. Terrell, 27 Kas. 326. See, also, Close v. Dunn, 24 Kas. 372; Sanford v. Bartholomew, 33 id. 38.)
It is contended that the tender of a deed was unnecessary because the proof showed that the defendants below — the purchasers — had repudiated the contract and declined to carry out its provisions before the commencement of the action. One of the defendants testified upon rebuttal that at an interview with the Gabes prior to the beginning of the action he told them that the defendants “had concluded to let the land go back.” It does not appear that he had authority to speak for his associates. A single remark of this kind by one of the 14 purchasers is hardly sufficient to show that a tender would have been declined, and is wholly insufficient of itself to constitute a waiver.
The plaintiffs in error contend that the delay of the Gabes in attempting to secure performance, or in applying to the court for relief, amounts to waiver of their rights under the contract, and to an acceptance of the forfeiture. It is true that, where time is made of the essence of the contract, a party to obtain specific performance must have acted without unreasonable delay. In this case, however, the conduct of the parties and the circumstances of the case indicate
The remaining questions that have been discussed upon the admission of testimony and upon the instructions of the court have been examined, but we find nothing in them whicli requires special comment.
The judgment of the district court will be reversed, and the cause remanded for another trial.