Bierer v. Fretz

• Decision Date: 03 July 1884
• Citation: 4 P. 284,32 Kan. 329
• Parties: EVERARD BIERER, et al., v. REED FRETZ
• Court: Kansas Supreme Court

4 P. 284

32 Kan. 329

EVERARD BIERER, et al., v. REED FRETZ

Supreme Court of Kansas

July 3, 1884

Error from Brown District Court.

ACTION brought by Fretz against Bierer and Downer, to recover damages for breach of a contract to convey to plaintiff certain real estate. Trial before the court and a jury October 5, 1883, judgment for plaintiff and against defendants for $ 500 and costs. Defendants bring the case to this court. The opinion states the material facts.

Judgement affirmed.

C. W Johnson, for plaintiffs in error.

Jas Falloon, for defendant in error.

VALENTINE J. All the Justices concurring

OPINION

VALENTINE, J.:

This was an action brought by Reed Fretz against Everard Bierer and Jacob Downer, for the alleged breach of the following contract, to wit:

"Know all men by these presents, That Reed Fretz, of the one part, and Everard Bierer and Jacob Downer, of the other part, of the county of Brown and state of Kansas, (Downer, of Fayette county, Pa.,) are held and firmly bound unto each other in the penal sum of one thousand dollars, to be paid unto the said parties, their heirs, executors, administrators, or assigns, to which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, and every one of them, firmly by these presents.

"The condition of the above obligation is such, That whereas the above-bounden Reed Fretz has this day sold to the said Everard Bierer and Jacob Downer, their heirs and assigns, for the sum of five thousand five hundred dollars, all the following described lot or parcel of land in the county of Brown and state of Kansas, to wit, lot No. 117, on Oregon street, in the city of Hiawatha, with the hotel known as 'Union Hotel,' and all the buildings thereon and privileges thereto attached; possession thereof to be given to said Bierer and Downer on January 1, 1883; all claims of mechanics, lumbermen and others, against said property, to be paid by said Fretz, and also taxes for years 1881 and 1882; and said Fretz is to have the railing put on side of first-story stairway, and put in wash basins, pipes, etc., in wash-room, as now ordered by him. In consideration whereof, said Bierer and Downer agree to convey to said Fretz the east half of the northwest quarter, and the west half of the northeast quarter, and the east half of the southwest quarter, and the southwest quarter of the southwest quarter; all valued at $ 3,000, and all in section No. 20, of township No. 1, of range No. 15, and to assume payment of a mortgage due to S.W. Colley, and to pay to said Fretz the balance of said sum of $ 5,500, after deducting said mortgage and interest, on or before January 1, 1883, in case the other provisions of this contract are then complied with by said Fretz. Upon the payment of the said sums being made, at the time and in the manner aforesaid, the said Reed Fretz and wife, and the said Bierer and wife, and Jacob Downer, single man, shall, on or before January 1, 1883, or as soon thereafter as possible, for themselves, their heirs, executors, and assigns, covenant and agree and with the said parties, that they, the said Reed Fretz and wife, to Bierer and Downer, and the said Bierer and Downer to Reed Fretz, their heirs, executors, administrators and assigns, shall execute good and sufficient warranty deeds for the above-described premises to and from each party.

"Now if the said Reed Fretz, on his part, and the said Bierer and Downer, on their parts, shall well and truly keep, observe and perform all said covenants and agreements herein contained, on their respective parts, then this obligation is to be void; otherwise, to remain in full force and virtue.

"Given under our hands, this 23d day of December, 1882.

REED FRETZ. [Seal.]

E. BIERER. [Seal.]

JACOB DOWNER. [Seal.]

By E. Bierer, his agent.

Executed in presence of JAS. MATHERS, Witness."

A trial was had before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendants for $ 500 and costs, and the defendants, as plaintiffs in error, now bring the case to this court and ask for a reversal of such judgment.

The plaintiffs in error, in their brief, present a vast number of points and cite a vast number of authorities; and while we have carefully considered all the points made, with many of the authorities cited, yet we do not think that it is necessary to mention many of them in this opinion. We shall mention only those points made which seem comparatively to be of the greatest importance.

The first point of importance made by counsel is, that the instrument sued on was never delivered; that it never became operative, and never had any binding force or obligation as a completed contract. We think this point is untenable. Bierer drew up the instrument. It was then signed by all the parties, Bierer signing not only for himself, but also as the duly-authorized agent of Downer. This was done near dark on Saturday evening, December 23, 1882. The parties then by agreement left the instrument with Ira J. Lacock, with the understanding that Bierer on the next Monday morning should get the same, and should make and furnish to Fretz a copy thereof. Bierer himself testified, among other things, as follows:

"Fretz and I went together to Lacock's office; told Lacock here was a contract between Fretz and myself about buying hotel property, and I would leave it with him until Monday, and then I would get it and make Fretz a duplicate."

There was no understanding or agreement between the parties that the instrument should not be considered "a contract," or that it should be considered merely as an escrow; but, on the contrary, both parties from that time forward treated it as "a contract;" and this the testimony of both Fretz and Bierer shows. We think the instrument was duly delivered, and that it became "a contract" and operative on that Saturday evening. It is not necessary in law, to make a contract operative and binding, that there should be an actual manual delivery of the instrument by one of the parties to the other; and this is true even where the instrument is signed by only one of the parties as a deed of conveyance. But where the instrument is signed by both parties, as in this case, it may become operative and be binding upon both parties as a contract, although it may be retained by only one of them, or be delivered to a third person. All that is necessary in the way of delivery to make a written instrument signed by both parties operative and binding is, that there shall be a mutual understanding between the parties that the instrument shall be operative and binding between them.

The plaintiffs in error, defendants below, make the further points, that this instrument is void for various uncertainties and obscurities in its terms; that it does not contain the entire contract between the parties; that other and additional matters were agreed to between the parties; and that its execution was procured by the fraud of Fretz and others. Under the pleadings and the evidence, however, we do not think that any of these points are tenable. As a foundation, however, for a portion of them, it is claimed by the defendants below that it was understood and agreed between Fretz and Bierer, and Harvey B. Troxel, and Samuel Smouse, Bierer's father-in-law, that if the trade was made between Fretz and Bierer and Downer, that Troxel should then purchase the furniture in the hotel from Fretz, and that he and Smouse should lease the hotel for a year from Bierer and Downer, and keep it, and pay to Bierer and Downer $ 75 per month rent therefor. But Bierer and Downer now claim that this latter arrangement was a fraudulent scheme on the part of Fretz and Troxel for the purpose of procuring the trade to be made between Fretz and Bierer and Downer, and that Troxel in fact never intended to purchase the hotel furniture, or to lease the hotel, or to keep it. Bierer and Downer at first set up all these matters in their answer as a counterclaim, and prayed for a judgment for damages against Fretz for the amount of $ 1,000. But during the trial Bierer and Downer withdrew their counterclaim, and allowed these matters to remain only as a defense. We do not think that these matters will render the written contract between Fretz and Bierer and Downer void. They are no part...