Akins v. Holmes
| Decision Date | 07 June 1913 |
| Docket Number | 18,226 and 18,227 |
| Citation | 133 P. 849,89 Kan. 812 |
| Parties | JOE G. AKINS et al., Partners, etc., Appellants, v. R. F. HOLMES et al., Appellees |
| Court | Kansas Supreme Court |
Decided January, 1913.
Appeals from Chase district court.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CONTRACT--Specific Performance--Fraud Pleaded--Rescission--Jury Trial--Tender of Deed. The contract between the plaintiffs and the defendants provided for an exchange of property, that belonging to the plaintiffs consisting of real estate in Missouri, and that belonging to the defendants consisting of real estate and personal property in Kansas. The personal property was delivered to the plaintiffs and the deed to the Kansas land was placed in escrow until the deed to the Missouri land should reach the depositary, when both were to be delivered. The defendants then undertook to rescind. They took possession of the personal property, demanded and received their deed of the depositary, and when the plaintiffs' deed subsequently reached the depositary it was immediately returned to them. The plaintiffs brought suit for the specific performance of the unconsummated contract, and with their pleading tendered a deed of the Missouri land. The defendants asked for rescission, on the ground of fraud, and for the cancellation of the contract. Held: (a) The plaintiffs were not entitled to a jury trial. (b) Tender of a deed of the Missouri land by the defendants to the plaintiffs was not required before the defendants answered praying for rescission, and such a deed was not necessary in order to restore the plaintiffs to the position which they occupied before the contract was made.
2. TWO ACTIONS--Specific Performance--Replevin--Based on Same Contract--No Jury Trial. The plaintiffs also brought an independent action of replevin for the personal property, in which a jury was called, but it was consolidated for trial with the specific-performance case. The jury returned findings of fact and a general verdict for the plaintiffs. The court made findings of fact in favor of the defendants, set aside the findings and verdict of the jury, and rendered judgment for the defendants. Held, the consolidation of the two actions for trial was proper, and the court was authorized to make a final determination of the issues in both cases itself, notwithstanding the conduct of the jury.
Dennis Madden, and W. C. Roberts, both of Emporia, for the appellants.
W. L. Huggins, Humbert Riddle, Henry E. Ganse, all of Emporia, and Dudley Doolittle, of Cottonwood Falls, for the appellees.
The action in the district court was one to compel the specific performance of a contract to convey real estate. The relief prayed for was denied and the plaintiffs appeal.
After negotiations between the parties they agreed upon an exchange of property. That belonging to the plaintiffs consisted of land in Missouri and that belonging to the defendants consisted of real estate and personal property in Kansas. The agreement in its entirety was embodied in several written instruments, executed on the 25th day of October, 1911. One of these was a bill of sale of the personal property given by the defendants to the plaintiffs. This property consisted of a stock of merchandise contained in a store building. Another was a lease from the plaintiffs securing to the defendants possession for a time of certain real estate which they were to convey to the plaintiffs. These instruments were executed upon the consideration of a principal contract, which furnished the basis of the suit. This contract provided for conveyances of the real estate to be exchanged, and contained the following provision:
The negotiations were concluded at Cottonwood Falls, where the defendants, who were husband and wife, resided. The plaintiffs, who were partners and who resided in Missouri, were represented by Joe G. Akins, a member of the firm. The deed of the defendants was duly executed and deposited in the bank and the store was turned over to Akins, who placed an agent in charge and then returned to Missouri. Fearing that the Missouri land had been misrepresented, R. F. Holmes went to Missouri to satisfy himself regarding the matter. Having done so, he took immediate steps to rescind. On November 3 he demanded and received from the bank the deed of the Kansas land. On November 4 he took possession of the store building and stock of goods, locked the plaintiffs' agent out, and directed him to notify the plaintiffs of the fact, which the agent did by telegram. On November 6 the deed to the Missouri land reached the bank, but was immediately returned to the plaintiffs by direction of the defendants.
The plaintiffs' petition set out the contract of the parties, repudiation by the defendants, performance, willingness to perform, and tender of a deed to the Missouri land, on the part of the plaintiffs, and concluded with the following prayer:
"Wherefore the plaintiffs pray that the said defendants be specifically required to perform their contract of sale as aforesaid, that they be required to make, execute and deliver to the plaintiffs a good and sufficient conveyance to said property aforesaid sold to said plaintiffs herein, and that they be barred and foreclosed from setting up any claim or interest in said property, or any part thereof."
The answer alleged that the defendants were induced to contract by the false and fraudulent representations of the plaintiffs, and prayed for the cancellation of the land contract, which had been recorded in Chase county, of the bill of sale, and of the lease. After a trial the court made findings favorable to the defendants, covering all the essential facts, and rendered judgment accordingly.
It is claimed that the court erred in not granting the plaintiffs a jury trial. It is elementary that a jury trial is not a matter of right in specific performance cases. It is argued that the action was really one for the recovery of specific real property. The constituent elements of a cause of action for that purpose, however, and of a cause of action for specific performance are radically different, and disregarding the prayer of the present petition, the right claimed by the plaintiffs and the wrong charged to the defendants characterize the action as one for specific performance. There is no similarity between this case and the cases of Gordon v. Munn, 83 Kan. 242, 111 P. 177, and Atkinson v. Crowe, 80 Kan. 161, 102 P. 50, 106 P. 1052, relied on by the plaintiffs. In each of those cases the contest was between rival claimants to ownership, and the real issue was whether the title of the one party or the title of the other was such as to require an award of the property to its proponent. The court held that the form in which this issue was cast should not control the method of trial, but that the essential nature of the controversy should determine whether or not a jury trial ought to be granted. This is a case between a vendor and a vendee, in which one party asks for the specific performance of an unconsummated contract to convey and the other asks for rescission on the ground of fraud. Both the form and the substance of the action are purely equitable and a jury trial was properly denied.
It is claimed that the answer was demurrable and that the judgment can not be sustained, because the defendants did not, before answering or in their pleading, tender to the plaintiffs a deed of the Missouri land. The argument is that when the defendants deposited their deed with the bank it passed irrevocably beyond their control; that when the plaintiffs' deed reached the bank the conditions of the escrow were fully performed; that the conduct of the bank in surrendering one deed and in returning the other without the consent of the plaintiffs had no effect upon the rights of the parties; and consequently that when the deed of the Missouri land reached the bank the title to such land passed to the defendants.
The rules relating to the time when an instrument deposited in escrow takes effect are...
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