257 P. 964 | Kan. | 1927
This was an action to recover a sum of money which defendant had assumed and agreed to pay as part consideration for certain mortgaged lands conveyed to him in an exchange of properties and incidents pertaining thereto.
The transactions leading up to defendant’s alleged assumption of the obligation giving rise to this action were somewhat complicated, but may be thus summarized:
In 1924 one Thomas C. Howe made a contract of exchange of properties with this, defendant, Martin C. Keller, whereby Howe conveyed to Keller a, tract of 160 acres of Pottawatomie county land, and Keller conveyed to Howe a house and lots, a store building, and a stock of merchandize, all in the town of Lemoyne, Neb. Howe was also obligated to Keller in the sum of $7,500 as the agreed difference in the trading value of the exchanged properties. With the assistance of one William A. Hart, a merchant in Havensville, Howe paid $3,000 of this sum in cash, and the balance was to be paid in monthly installments of $150. One J. G. Hart, father of William A. Hart, was the real-estate dealer who negotiated the contract of exchange; and not long afterwards Hart opened further negotiations with Keller on Howe’s behalf to obtain relief from the burden of $150 per month which Howe had to pay to Keller. Hart represented that Howe could not pay that sum of money, but that he would convey to Keller in lieu thereof 640 acres of land in the state of Wyoming covered by a mortgage of $4,200 due in 1929, which mortgage was in favor of .one C.. E. Howe, brother of Thomas; and Thomas also proposed to give Keller his promissory note for $3,500 and secure it by a mortgage on the Nebraska real estate theretofore conveyed by Keller to him in the exchange of properties. Keller assented to this proposal, and the note and mortgage for $3,500 were accordingly executed by Thomas C. Howe to Keller, and Thomas also executed to Keller a warranty deed conveying the Wyoming land, “free from incumbrances except a mortgage of forty-two hundred dollars, which assignee assumes and agrees to pay.”
Later E. O. Howe, mortgagee of the'Wyoming land, traded or-sold that mortgage to this plaintiff, George Springer.
Thomas defaulted in the payment of his indebtedness to Keller and the latter foreclosed his mortgage on the Nebraska property,
Defendant pleaded various defenses — that he never accepted the deed to the Wyoming land; that plaintiff was not the owner of the note and mortgage covering the Wyoming land; that the signature of C. E. Howe assigning the note and mortgage was not genuine; that the plaintiff was merely a straw man for William A. Hart and J. G. Hart; and that J. G. Hart, acting for Thomas C. Howe, had made grossly false representations touching the value of the Wyoming land and its quality and adaptability for agriculture, on all of which defendant had relied; and that Hart had also represented that good title in fee simple would be vested in defendant, but that Thomas C. Howe, the patentee, had no such title to convey, since by the terms of the patent the government reserved certain mineral rights in the land and rights of way for irrigation ditches thereon.
Plaintiff filed an extended reply, which included an allegation that defendant Keller had authorized a Lemoyne banker to act for him in the transaction whereby the Wyoming land was conveyed to Keller, and that defendant had ratified the acts of this banker as his agent and had foreclosed the mortgage given by Thomas C. Howe on the Nebraska property, and by various other acts and conduct defendant was estopped to deny the validity of the obligation assumed by him in the deed to the Wyoming land.
Trial by the court; evidence of the parties presented; cause taken under advisement and judgment entered for plaintiff; motion for a new trial taken under advisement and overruled. One appeal was taken from the judgment, and another appeal from the deferred ruling on the motion for a new trial. These appeals have been consolidated and the case is here for review.
The first error assigned relates to the trial court’s refusal to permit defendant to amend his answer during the trial in order to make his pleadings conform to his evidence. That was a matter vested in the trial court’s discretion (Croner v. Keefer, 103 Kan. 204,173 Pac. 282), and here it is not shown that that discretion was abused. The trial was concluded on April 15, 1926, and the trial court’s decision announced on May 28. On the latter day the application to amend
“When a deed passes an estate of value, although not that covenanted for, it is to be considered in measuring damages.”
Again, in 15 C. J. 1326 it is said:
“The general rule that only nominal damages are recoverable in actions for breach of a covenant where plaintiff has sustained no actual loss applies with reference to actions for breach of a covenant against encumbrances.” (See, also, 7 R.C.L. 1170, 1175, 1177.)
The second error assigned is based on the overruling of defendant’s motion for a new trial, in which it is urged that the decision was.not sustained by sufficient evidence. To support that contention defendant’s evidence touching the character of the Wyoming land is quoted, also its tillable acreage, its value, and the condition of the title. But as we have seen, if that had been a defense of any sort against this plaintiff, it could only have been as a matter of damages which might have been pleaded and proved as a set-off in reduction of plaintiff’s demand.
Defendant’s motion for a new trial was also predicated upon the exclusion of “appellant’s offer of testimony during the trial.” That, however, is unavailing, because the excluded testimony — whatever it was — was not produced in support of the motion for a new trial. (Civ. Code. § 307; R. S. 60-3004; Leach v. Urschel, 112 Kan. 629, syl. ¶ 9, 212 Pac. 111, Rooney v. McDermott, 121 Kan. 93, syl. ¶ 3, 241 Pac. 103.)
It is finally contended that the plaintiff's deposition “shows that
No material or prejudicial error in this record is disclosed and the judgment is therefore affirmed.