108 Kan. 480 | Kan. | 1921
The opinion of the court was delivered by
By this action the plaintiff seeks to cancel a contract for the conveyance of real property. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The court made special findings of fact and conclusions of law as follows:
“findings of fact.
“1. That on the 27th day of February, 1917, the plaintiff and defendant entered into a contract, a copy of which is attached to the petition.
“2. That at the time of the execution of said contract, the defendant paid to the plaintiff thereon the sum of three hundred dollars by surrendering to the plaintiff a check which had been formally [formerly] given to her by the plaintiff in payment of an obligation theretofore existing.
“3. That after the execution of the contract the defendant entered into the possession of the property, but after remaining in possession a short time was forcibly ejected by the agent of the plaintiff.
“4. That no part of the consideration of said contract, except the three hundred dollars paid upon the execution thereof has ever been paid.
“CONCLUSIONS OF LAW.
“The contract mentioned in finding No. 1, was and is a valid and legal contract.
“Because of the repudiation of the • contract' by the plaintiff by the institution of this suit, the defendant was relieved of any forfeiture thereof by reason of any failure on her part to make the payment of the balance of the three hundred dollars.”
The evidence introduced on behalf of the defendant supported the second finding and may be briefly summarized as follows: The plaintiff and the defendant entered into a written contract of partnership to engage in the real-estate business. In a short time, the contract proved unsatisfactory to the plaintiff, who desired that a new one be signed. That was done, but as a consideration for changing the contract, the plaintiff gave to the defendant certain interest in real property in Stevens county and a check for $300. Afterward, the contract that is sought to be canceled in this action was made, and the $300 check was accepted by the plaintiff as part payment on the real estate described in that contract. The relations between the parties proved unsatisfactory and a settlement was effected. On the last contract of partnership, the following indorsement was made at the time of settlement:
“April 4, 1917.
“Received of R. J. Terwilliger, $750, which is in full settlement of all claims against said R. J. Terwilliger,- and any and all contracts or commissions of any nature whatsoever. (Signed) Mary L. McCorkle.”
The evidence of the defendant and some of the cross-examination of the plaintiff tended to show that this receipt applied only to the matters embraced within the contract on which it was written, and did not refer to, nor intend to embrace anything contained in the contract which the plaintiff seeks to cancel. Ignoring the evidence tending to support the contention of the plaintiff, as must be done in determining this question, it cannot be said that the second finding of fact was not supported by evidence.
The contract provided that the defendant should pay all—
“Taxes and assessments as may hereafter become due on said premises, including the taxes for the year 19-, and in case of the failure of the purchaser to pay all such taxes and assessments before the time when the same may become delinquent according to law, then it shall be optional with the grantor to pay the same and any penalty attached; and the amount so paid shall thereafter draw ten per cent per annum interest and shall with the interest, be added to the amount which the purchaser is required and agrees to pay to the grantor under this contract.”
The contract further provided that—
“In case the purchaser shall fail to make the payments aforesaid or any of them punctually, as above mentioned, or shall fail to perform and complete each and all of the purchaser’s agreements and stipulations aforesaid, strictly and literally, without failure or default, then this contract, so far as it may bind said grantor, shall become utterly null and void, and all rights and interests hereby created, or then existing, in favor of, or derived from, the purchaser, shall utterly cease and determine, and the right of possession, and all equitable and legal interests in said premises shall revert to and revest in said grantor without any rights of said purchaser of reclamation or compensation for the moneys paid or services performed, as absolutely, fully and perfectly, as if this contract had never been made.
“And it is further agreed that the said grantor shall have the right immediately upon the failure of the purchaser to comply with the stipulations of this contract to enter upon the land and premises aforesaid, and take immediate possession thereof, together with the improvements and appurtenances thereto belonging. And the said purchaser hereby covenants and agrees that the purchaser will thereupon surrender to the grantor the said land and premises and appurtenances without delay or hindrance and that no court shall relieve the purchaser from the consequences of a failure to strictly comply with this contract.”
The plaintiff paid all installments and taxes; the defendant paid none of them.
There was no allegation in the petition that the plaintiff had declared a forfeiture of the contract, nor that the defendant had forfeited her rights thereunder; and there was no evidence which tended to prove a forfeiture, except that the defendant had, through legal proceedings against the tenant, obtained possession of the property, and that afterward the plaintiff
“That he did not subpoena said A. D. Roberts as a witness in said case for the reason that he did not remember that said Roberts was present at the time of making the contract herein mentioned, and did not know that he could he of any use to him in the trial of said case; and not until after the case was over and the former motion for a new trial was overruled, did he learn of the facts which are contained in the affidavit of said Roberts and then learned the same from said Roberts.”
The affidavit of Roberts was also filed. In that affidavit, he stated—
“That I positively know that there was not included in the consideration of the contract between Mrs. McCorkle and Mr. Terwilliger, a check for $300 or for any amount; that the $300 mentioned as having been ' paid in that contract as the first payment was not paid in any way by Mrs. McCorkle to Mr. Terwilliger, and it was distinctly understood between Mrs. McCorkle and Mr. Terwilliger, at that time, that there was nothing paid on the property by her, either by check or account or in any other manner. I heard the whole of the conversation between them regarding this contract.”
The evidence of the plaintiff on the trial and the affidavits filed by him showed conclusively that, at the timé the contract was made, he knew that Roberts was present; but it appeared that the plaintiff did not remember that fact before the trial,
The judgment is affirmed.