Bell v. Keepers

• Decision Date: 07 April 1888
• Citation: 17 P. 785,39 Kan. 105
• Parties: S. B. BELL v. JOHN KEEPERS
• Court: Kansas Supreme Court

17 P. 785

39 Kan. 105

S. B. BELL v. JOHN KEEPERS

Supreme Court of Kansas

April 7, 1888

Error from Wyandotte District Court.

Action by Keepers against Bell, to recover certain damages. Plaintiff's petition stated five distinct causes of action. Trial at the April term, 1886; the jury returned a general verdict for plaintiff for $ 391.65 damages--$ 200 thereof being upon the first cause of action, $ 150 thereof upon the third cause, and $ 41.65 thereof on the fourth cause. Judgment accordingly for the plaintiff. The defendant brings the case here. The opinion states the material facts.

Judgment affirmed.

Nathan Cree, for plaintiff in error.

J. O Fife, and John A. Hale, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT C.:

John Keeepers, the defendant in error, brought this action against S. B. Bell, and set forth in his petition five distinct causes of action. A general verdict was rendered in his favor, and special findings for amount of recovery upon the first, third and fourth causes of action. The first cause of action arose from the following facts: In April, 1884, Bell agreed to sell to Keepers three pieces of property, two tracts of real estate, and a barn, which was treated by both parties as personal property. There was a contract entered into in writing, stipulating that Keepers should pay $ 2,250 for the three pieces of property, in monthly payments of $ 40 each, until all were paid for. One of the tracts of real estate was purchased by Keepers for the purpose of erecting a canning factory thereon; it was situated in Wyandotte, on the "southwest boulevard." Plaintiff in his petition averred that the defendant fraudulently described the land in pointing out the boundaries at the time of the sale. This tract, facing one hundred feet upon the "boulevard," ran back to a creek; if it was to be used as the location for a canning factory, it would be of great advantage to it to border upon the creek. At the time of the purchase, while this matter was being talked over, the defendant told plaintiff that the tract bordered upon the creek 88 or 90 feet, or that it was not more than ten or twelve feet narrower in the rear than it was in front upon the boulevard. By a survey afterward made, it appeared that the lot touched upon the creek for only fifteen feet. This tract of land, which was called by the defendant at the trial a "gore," was a part of a body of land originally owned by Bell, but which had been divided by the court in an action between Bell and his wife for divorce; it had not been surveyed, and probably the description which Bell gave to Keepers, and the boundaries designated, were given by him without knowing they were erroneous; he did not know where the division line ran, but talked to plaintiff as though he did.

In November, 1884, the other piece of real estate was traded by Keepers to one Marks, and at Keepers's request Bell made Marks a deed. Marks gave a mortgage thereon for $ 700 to Bell, and paid Keepers $ 800; that payment was made in saddler's stock, however, and there was some testimony showing that it was put in at more than its market value would have been at wholesale. Keepers paid several monthly installments of $ 40, the last on the 1st day of January, 1885, and neglected to make any payment thereafter. On the 17th of March following, Bell sent him notice to leave the premises. Bell abandoned the premises and brought this action. He had in the meantime been making some improvements and renovations on the barn that he bought and occupied as a canning factory. He had paid altogether $ 200 on the contract. There was a general verdict for the plaintiff, and the only special findings were in apportioning the different amounts upon the several causes of action; upon the first cause of action it was found to be $ 200 and interest.

Several errors are alleged, only one of which we shall consider, as we believe the determination of that one will practically dispose of the case. The following instruction was asked, and refused:

"If the jury find that on the 27th day of November, 1885, Bell at the request of Keepers conveyed one of the parcels of land described in the contract of April 10, 1884, to one Marks, and that Keepers received a sum of money as the result of said sale, then the court instructs you that Keepers could not repudiate and rescind the said contract of sale and retain the money so received, but was bound to return the same to Bell upon any rescission of the contract."

This instruction, or one...