Allen v. Gheer

• Decision Date: 10 June 1916
• Docket Number: 19,955
• Citation: 98 Kan. 228,158 P. 17
• Parties: GRACE ALLEN, Appellee, v. M. S. GHEER, Appellant
• Court: Kansas Supreme Court

158 P. 17

98 Kan. 228

GRACE ALLEN, Appellee, v. M. S. GHEER, Appellant

No. 19,955

Supreme Court of Kansas

June 10, 1916

Decided, January, 1916.

Appeal from Shawnee district court, division No. 2;GEORGE H WHITCOMB, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1.SALE OF REAL ESTATE--Default of Purchaser--Waiver--Pleadings.The rule that a waiver of a right of forfeiture must be pleaded before it can be considered does not apply when evidence tending to show the waiver is introduced without objection, and when the testimony of the defendant who is insisting on the forfeiture tends to show a waiver, and when his request for the submission of special questions on the subject of waiver is allowed.

2.SAME--Repudiation of Contract--Instructions.When a vendor of real estate, under a contract of sale and to convey title when payments are completed, by his course of conduct has waived the default of the vendee and the vendee's assignee, and wrongfully recovers possession of the property, and the vendee's assignee commences an action for damages thereon, it is not error for the court to instruct the jury that "both parties are seeking to treat the contract in question as repudiated."

SAME -- Repudiation of Real-estate Contract -- Measure of Damages.Where a vendor of real estate receives a payment on the purchase price and afterwards repudiates the contract and wrongfully recovers possession of the property, and the vendee elects to treat the contract as repudiated, the measure of damages, where no other elements of damage are established, is correctly defined to be the amount paid on the purchase price less the rental value of the property while in possession of the vendee.

J. B. Larimer, and Hugh T. Fisher, both of Topeka, for the appellant.

J. J. Shenck, of Topeka, for the appellee.

OPINION

DAWSON, J.

On October 15, 1913, the defendant, M. S. Gheer, made a written contract with D. L. Allen for the sale of a house and six acres of land in a subdivision near Topeka for $ 4000.Allen paid $ 500 on the purchase price, and the contract provided that Allen was to pay the taxes, interest, etc., as they became due, and further provided:

"And it is hereby agreed and covenanted by the parties hereto, that time and punctuality are material and essential ingredients in this contract."

Allen took possession of the property and Gheer went away to California.Some time afterwards Allen assigned the contract to his wife.The taxes due in December, 1913, were not paid by the Allens, and they were paid by Gheer's banker to protect his interest.About March 1, 1914, the plaintiff, Mrs. Allen, rented the property to John Spurrier, and he took possession.Gheer returned from California on March 9.Some days later he visited the property and found it in a dilapidated condition, very different from what it was when he had given possession to Allen.About March 20 Gheer called Mrs. Allen by telephone.Her father answered the call, and Gheer told him who he was, and inquired "what they were going to do in regard to the place; that the taxes were not paid and the place not well kept."Gheer met Mrs. Allen about March 24 and once or twice afterwards with a view of effecting a settlement.Gheer paid $ 20 to Spurrier, the tenant, to vacate the premises, and thus obtained possession about March 31.About April 10 Mrs. Allen offered Gheer the December half of the taxes, and he told her to settle with his attorney, but did not inform her who was his attorney.About April 15 Mrs. Allen's father, on her behalf, tendered Gheer the interest then due on the contract.Again Gheer told him to settle with his attorney.

Thereupon the plaintiff treated the contract as broken by Gheer, and on April 22she filed this action for damages, and from a verdict and judgment for $ 451.50 in her favor the defendant appeals.

The errors assigned chiefly relate to the instructions.

1.It is first insisted that it was error to give the instruction that even if there was a default the plaintiff could recover if the default was waived.The soundness of this proposition of law is not disputed, but it is contended that since this waiver was not pleaded it was erroneous to permit its consideration.In support of the motion for a new trialthe defendant and his counsel filed affidavits, reciting, "that at no time until the court actually read the instructions given to the jury, was there any suggestion made in said case by any one that the plaintiff or her attorney claimed that there was any question of a waiver of the default in the contract."

While the general proposition contended for by defendant is correct, that a waiver can not be proved unless pleaded, we think that he should have raised that objection when the evidence was offered.If he did so, no error is assigned thereon.Much of the evidence related to defendant's conduct and course of dealing with the plaintiff after his return from California which tended to show waiver, and its relevancy does not otherwise appear.Nor could it have been much of a surprise to defendant that the court instructed the jury on the question of waiver, for the defendant was ready with special questions on that phase of the case.These were allowed and answered:

"6.Did defendant waive the default in payment of the taxes for 1913?Ans.Yes.

"7.If you answer the last question in the affirmative then state definitely and in detail all acts or statements you find of defendant that constituted such waiver and when the same occurred?Ans.Failure to take prompt action on March 9, 1914, on defendant's return from California.That plaintiff tendered the taxes for 1913 to the defendant and that he told her to pay same to The Shawnee State Bank.Offer of defendant to pay plaintiff $ 100.00 on the surrender of her contract.Defendant's attempt to communicate by telephone with plaintiff on the subject of the contract.Defendant's statement to Linge that if plaintiff would live up to her part of the contract he would live up to his part."

Furthermore, if this question of waiver was indeed a surprise to defendant, he might have asked and obtained leave to introduce testimony to contradict the evidence of waiver.If such evidence was not at hand, an adjournment or continuance should have been requested.But, as we read the abstracts, the testimony of Gheer himself went far to prove a waiver, and under the circumstances of this casewe can not sanction a reversal for failure to plead a waiver nor on account of the instructions, correct in themselves, which related thereto.

"A new trial shall not be granted as to any issues in a case unless on the pleadings and all the evidence offered at the trial and on the motion for a new trialthe court shall be of the opinion that the verdict or decision is wrong in whole or in some material part."(Civ. Code, § 307.)

"The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court; and in any case pending before it the court shall render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court."(Civ. Code, § 581.)

While the cases cited by appellant, Insurance Co. v Johnson,47 Kan. 1, 27 P. 100;Insurance Co. v. Thorp...