Brentnall v. Marshall

• Decision Date: 17 December 1900
• Docket Number: 429. [*]
• Citation: 63 P. 93,10 Kan.App. 488
• Parties: SAMUEL BRENTNALL v. SAMUEL MARSHALL
• Court: Kansas Court of Appeals

63 P. 93

10 Kan.App. 488

SAMUEL BRENTNALL v. SAMUEL MARSHALL

No. 429. ^[*]

Court of Appeals of Kansas

December 17, 1900

Decided December, 1900.

Error from Osage district court; WM. THOMSON, judge.

Judgment of district court affirmed.

SYLLABUS

1. PRACTICE, District Court -- Variance -- Amendment. "Where there is a variance between the allegations of a bill of particulars and the facts proved and specifically found by the jury on the trial, yet if it be a case where an amendment to a bill of particulars ought to be allowed, to conform it to the facts proved and found, the judgment in favor of the plaintiff will not be reversed on account of the variance, if no substantial rights of the defendant have been prejudiced." (Jung v. Liebert, 44 Kan. 304, 24 P. 474.)

2. REAL ESTATE -- Contract of Sale -- Default. Where, by the terms of a contract for the sale and conveyance of land, the purchase-price is made payable in instalments, and the conveyance is to be made upon the payment of the last instalment, and where default is made by the purchaser in the payment of instalments and no action is taken by the vendor either to enforce or rescind the contract, until after the maturity of the last instalment, the obligations of the parties to the contract are mutual and dependent, and the vendor cannot put the purchaser in default save by an offer to convey the land.

A. A. Hurd, W. Littlefield, and O. J. Wood, for plaintiff in error.

C. S. Martin, and J. H. Stavely, for defendant in error.

OPINION

SCHOONOVER, J:

On May 22, 1886, the Osage Carbon Company, a corporation doing business under the laws of Kansas, entered into a written contract by which it agreed to sell and convey to Samuel Marshall, the defendant in error herein, certain real estate in Osage county. Marshall made a cash payment upon the land of $ 545, and agreed to pay the balance of the purchase-price, $ 2160, with accruing interest, in five instalments, the last instalment being due May 22, 1891. The contract contained, among others, the following provisions:

"And it is hereby agreed and covenanted by the parties hereto, that time and punctuality are material and essential ingredients in the contract. And in case the third party shall fail to make the payments aforesaid, and each of them, punctually, and upon the strict terms and times herein limited, and likewise to perform and complete all and each of his agreements and stipulations aforesaid strictly and literally, without any failure or default, including the prompt payment of all taxes and assessments upon said land before the same shall become delinquent according to law, then this contract, so far as it may bind said party of the first part, shall become utterly null and void, and all rights and interests hereby created or then existing in favor of the third party or derived from him shall utterly cease and determine, and the right of possession and all equitable and legal interests in the premises hereby contracted shall revert to and revest in said party of the first part, without any declaration of forfeiture or act of reentry, or any other act of said party of the first part to be performed, and without any right of said third party to reclamation or compensation for moneys paid or services performed or improvements made, as absolutely, fully and perfectly as if this contract had never been made.

"And said party of the first part, its successors or assigns, shall have the right, immediately upon the failure of the party of the third part to comply with the stipulations of this contract, including the payment of all taxes before the same shall become delinquent, to enter upon the land aforesaid and to take immediate possession thereof, together with the improvements and appurtenances thereto belonging. And the said party of the third part covenants and agrees that he will surrender unto the said Osage Carbon Company the said lands and appurtenances, without delay or hindrance, and no court shall relieve the party of the third part from a failure to comply strictly and literally with this contract.

"In case the third party, his legal representatives or assigns, shall pay the several sums of money aforesaid punctually and at the times above limited, and shall strictly and literally perform all and singular his agreements and stipulations aforesaid after their true tenor and intent, including the prompt payment of all taxes and assessments upon the said land before the same shall become delinquent according to law, then the said trustee shall release and discharge the said land from any and all encumbrances created by the said deed of trust, and the said first party shall, upon surrender of this contract, execute and deliver to the said party of the third part, his heirs or assigns, a proper deed for the said premises, conveying the same absolutely in fee simple, with the ordinary covenants of warranty."

Marshall entered into possession of and occupied the land and made some substantial improvements upon it. In March, 1894, he leased the premises for a term of one year to Samuel Brentnall, plaintiff in error, who took possession of and occupied the same.

Marshall failed to pay all the instalments as provided by the terms of the contract, and in December, 1894, the Osage Carbon Company canceled the contract. Marshall did not consent to such cancelation otherwise than by the terms of the contract itself.

On January 18, 1895, the Osage Carbon Company executed a written lease of the premises to plaintiff in error Brentnall, who continued in possession of the land until March 1, 1896, claiming, however, to hold possession of the premises from January 18, 1895, to March 1, 1896, under and by virtue of the lease executed to him by the Osage Carbon Company.

Marshall brought suit against Brentnall before a justice of the peace of Osage county to recover $ 200 as rent for the premises for one year, from March 1, 1895, to March 1, 1896, and succeeded in obtaining a judgment in his favor. The case was then taken on appeal to the district court of Osage county, where a judgment was again rendered in Marshall's favor. Brentnall brings the case here for review.

Plaintiff in error contends that as this action was founded upon a written lease of the land, and the proof showed that the tenant was never put in possession of the land and never occupied it, there was, therefore, no right of recovery. Both the lease upon which the action is founded and plaintiff's petition described the land as being situated in township 17, Osage county, Kansas, while the proof showed...