115 Kan. 395 | Kan. | 1924
This appeal involves the right to specific performance of an alleged contract for the sale of land. Samuel Weinhold, an elderly widower, who had six living children and owned separate farms, some of which he had sold, decided that he would sell each of his three sons, Arthur, Charles and Merl, a quarter section of land. He entered into negotiations with them and arranged to sell each a tract on certain terms. Each of them indicated the quarter section that he desired to purchase and the one selected by Merl was sold to him. Later Charles and Arthur each orally agreed with their father that they would purchase two of the tracts, selecting the ones they desired to purchase. The tract selected by Charles was priced at $8,000, and Arthur arranged to take the one selected by him, at the price of $5,000. A scrivener prepared written contracts which were signed by the parties, and the contract recited the terms of payment. Each provided for a cash payment, and that of Arthur, the only one involved here, contained the provision that he was to pay:
“The sum of $5,000 in manner following: $500 cash in hand paid, the receipt of which is hereby acknowledged, and the sum of $4,500 to be paid on or before ten years with interest from May 15th, 1919, with interest at the rate of five per cent per annum, payable annually on the whole sum remaining from time to time unpaid.”
Charles made the cash payment agreed upon and a copy of the agreement ivas delivered to him as evidence of a completion of the sale. Arthur was unable to make the cash payment and his father retained the original and copy of the agreement, placed them in a box at his home in which he kept his papers awaiting the payment of the $500. About a month afterwards, while in Colorado, Arthur-contracted influenza, which caused his death. Shortly afterwards the contract which had been prepared but never delivered was taken by the father to an officer of the bank of Wilson, and was destroyed by him under the direction of Samuel Weinhold. Later the tract was sold to R. S. Weinhold for a consideration of $6,000. A controversy subsequently arose between Ethel D. Weinhold, the widow of Arthur, as to whether there was a completed contract between Arthur and his father and as to whether the cash payment provided for in the contract had been made or arranged for to the satisfaction of both parties.
“The said Charles having made the payment of $500 mentioned in the instrument of writing signed by himself and said Samuel Weinhold, a copy of said instrument was delivered to him by said Samuel Weinhold, the other copy being retained by said Samuel Weinhold. Later, both copies were left with the scrivener, F. S. Percival, at the Wilson State Bank. Said Arthur not being able to pay the $500 mentioned in the instrument signed by himself, and not being able to pay any part of said sum of $500, no copy of said instrument in writing was delivered to him, but the said Samuel Weinhold took both copies of said instrument with him, it being the intent and understanding of said Arthur and said Samuel Weinhold that the instrument in writing should not be delivered to said Arthur until the said sum of $500 was paid. Said Samuel Weinhold took both copies of the written instrument signed by himself and said Arthur to his home and placed them in a safety box where they were kept until they were removed by said Samuel Weinhold and taken to the Wilson State Bank and there destroyed as hereinafter stated. Other members of the family of said Samuel Weinhold, among them said Arthur, kept their valuable papers in said box or chest, and all had free access to the box.”
Based on this finding the court concluded that as no part of the $500 mentioned in the written instrument had ever been paid and the instrument had never been delivered, and further that it was the understanding of Arthur and his father that the written instrument should not be delivered until the sum of $500 was paid, the court held that the plaintiffs were not entitled to judgment for specific performance.
The case turns largely on the evidence produced, much of which is in conflict. Negotiations for a sale of the land were had, the terms committed to writing and the question is was the contract completed so as to become effective between the parties. It was wéll established that a cash payment of $500 was required in order to close the contract and make it a binding obligation. It is equally clear that duplicate copies of the proposed agreement which had been prepared were withheld by Samuel Weinhold because the advance payment had not been made by Arthur, and further that it was the understanding of both parties that there should be no delivery or completion of the contract until the $500 payment was made. It is contended that the advance payment was subsequently made by Arthur, or if not paid, that his father agreed to give him
“The law does not make a contract when the parties intend none, nor does it regard an arrangement as completed which the parties thereto regard as incomplete.” (Bitulithic Paving Co. v. Highland Park, 164 Mich. 223, 228.)
The trial court having held on the evidence that the payment arranged for had not been made, it was warranted in holding that the contract did not become effective and therefore could not be specifically enforced. If Arthur had lived and had failed to close the contract by a compliance with the condition of the offer, his father could not have successfully insisted on specific performance. The death of Arthur ended the transaction and left nothing which his representatives or heirs could enforce. Much testimony was presented as to conversations had and statements made by the parties as to the transaction shortly after Arthur’s death, which is said to have influenced the widow in not insisting on the carrying out of the proposed sale, but none of it approached the making of a new contract with the widow and children of Arthur. Some of it
Judgment affirmed.