Bros. v. Wells

Decision Date09 April 1892
Citation29 P. 601,48 Kan. 494
PartiesMORRISON BROS. v. EMMA C. WELLS
CourtKansas Supreme Court

Error from Barton District Court.

THE material facts are stated in the opinion.

Judgment affirmed.

J. W Clark, and Cole Bros., for plaintiffs in error.

Maher & Osmond, and Thos. H. Bain, for defendant in error.

STRANG C. All the Justices concurring.

OPINION

STRANG, C.:

This action was brought by Morrison Bros. to recover the sum of $200, alleged to have been subscribed by the defendant, Emma C. Wells, for the benefit of the plaintiffs, together with other subscriptions of other persons, amounting in all to $4,000, as inducement to the erection by the plaintiffs of a hotel in the city of Great Bend, Kan. The action was begun before a magistrate, who gave the plaintiffs a judgment. Defendant appealed to the district court, where the case was tried by the court without a jury, resulting in a judgment for the defendant. The plaintiffs bring the case to this court. The defendant challenges the case-made, and says that it does not show that the motion for a new trial was filed within the time allowed by law, and that the case cannot for that reason be considered by this court. The record shows that the case came on for trial on the 23d of February, 1889 and the journal entry shows that the judgment was rendered on the same day, though the motion for new trial recites that the judgment was rendered on the 26th of February. The record does not state when the motion for new trial was filed, but the following statement is incorporated in the record, immediately following the journal entry: "Whereupon the plaintiffs duly filed their motion to set aside the judgment in said cause and for a new trial, which said motion was in words and figures following." Then follows the motion.

Is this case properly in this court? We think it is. This court held, in Hill v. Wand, 47 Kan. 340, (27 P. 988,) that the sentence, "thereupon the defendants filed, in writing, their motion for a new trial," immediately following the verdict in the record, must be construed to mean that the motion for a new trial was filed immediately after the return of the verdict. That case is decisive of this. But in this case the recital in the record is in one respect somewhat more complete than in the case cited. In this record the recital is, "Whereupon the plaintiffs duly filed their motion." The word "duly" means properly, regularly, and in this connection indicates that the motion was regularly and properly filed.

The contract sued on in this case contains conditions precedent to be performed by the plaintiffs before the liability of the defendant attaches. It is conceded that these conditions were not performed within the time designated in the contract for their performance. If, therefore, time is of the essence of the contract, the defendant was not liable, unless she may be said to have waived the conditions. The contract reads as follows:

"We, the undersigned, owners of real estate adjacent to lots 13, 14, 15, and 16, in block 77, city of Great Bend, Kan., in consideration of the erection by Morrison Bros. Upon said lots, a modern, three-story stone with galvanized-iron trimmings and brick hotel, containing not less than 50 sleeping rooms, agree to pay to said Morrison Bros. the sum of $4,000, each paying the sum set opposite his or her name when said building is under roof and plastered, provided the same is plastered on or before the 1st day of December, 1887. This subscription to be null and void if the said Morrison Bros. don't begin work on or before the 1st day of April, 1887, and continue till completed. Said hotel to be between 80 and 90 feet wide and between 85 and 100 feet long, and to cost about $25,000 when finished, and to be completed January 1, 1888. MORRISON BROS."

The first condition precedent may be found in the first part of the contract, and, stripped of immaterial words, reads as follows: "We agree to pay to said Morrison Bros. the sum of $4,000, when said building is under roof and plastered, provided the same is plastered on or before the 1st day of December, 1887." The condition upon which the money is to be paid is, that the building shall be plastered on or before the 1st day of December, 1887. There is nothing in the subject-matter of the contract that tends to make time of the essence thereof. Outside of the express terms of the contract, it would not seem to make any serious difference to the defendant whether the building was plastered on or before the 1st day of December, or a few days later. So far as we can gather from the record, the defendant would not suffer any by the delay. But have not the parties to the contract, by fixing a time within which the building should be plastered, and making the payment of the subscription conditioned thereon, made time an essential element of the contract? The parties subscribing had a right to make the payment of their subscriptions dependent upon any conditions they might require to be inserted in the contract. They said, "We will pay our subscriptions provided the hotel is plastered by December 1, 1887." Does not this proviso create a condition precedent that must be performed before any liability to pay their subscriptions could attach to the subscribers? And must not the condition be performed according to the stipulation of the contract, as to time, as well as to all other particulars? We think so.

In Warren v. Bean, 6 Wis. 120, the court says "Where a party contracts to perform certain work or labor in a specified manner, and by a specified time, the time is as much the essence of the contract as the manner in which the work or labor is to be performed." This was an action on a...

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9 cases
  • Welborn v. Whitney
    • United States
    • Oklahoma Supreme Court
    • 7 de abril de 1942
    ... ... 'in due manner; when or as due; agreeable to obligation ... or propriety, exactly, fittingly, properly' (Cent ... Dict.). In Morrison v. Wells, 48 Kan. 494, 29 P ... 601, there was a recital that plaintiffs had duly filed their ... motion. The court said: 'The word "duly" means ... ...
  • State ex rel. Warnick v. Wilson
    • United States
    • Kansas Supreme Court
    • 8 de março de 1947
    ...To such effect they cite Dewey v. Linscott, 20 Kan. 684, 687, Hill v. Wand, 47 Kan. 340, 27 P. 988, 27 Am.St.Rep. 288; Morrison v. Wells, 48 Kan. 494, 29 P. 601; Humbarger v. Humbarger, 72 Kan. 412, 83 P. 1095, Am.St.Rep. 204; Hallam v. Huffman, 5 Kan.App. 303, 48 P. 602. In some of the cit......
  • Rymph v. Derby Oil Co., 46598
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    • Kansas Supreme Court
    • 3 de março de 1973
    ...time in which to drill the well. What is a reasonable time for performance is generally a question for the trier of fact. (Morrison v. Wells, 48 Kan. 494, 29 P. 601; Marsh v. Brown-Crummer Inv. Co., 138 Kan. 123, 23 P.2d 465.) This being so we believe the trial court as the trier of fact wa......
  • Claus-Shear Co. v. E. Lee Hardware House
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    ... ... on the particular circumstances of each case. Luckhart v ... Ogden, 30 Cal. 557; Morrison v. Wells, 48 Kan ... 494, 29 P. 601; Searcy v. Hunter, 81 Tex. 644, 17 ... S.W. 372, 26 Am. St. Rep. 837; Furniture Co. v. Board of ... Education, 58 N ... ...
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