Burkhalter v. Jones

• Decision Date: 02 April 1884
• Citation: 32 Kan. 5,3 P. 559
• Parties: CHARLES BURKHALTER v. JANE JONES
• Court: Kansas Supreme Court

3 P. 559

32 Kan. 5

CHARLES BURKHALTER v. JANE JONES

Supreme Court of Kansas

April 2, 1884

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from Doniphan District Court.

ACTION brought by Charles Burkhalter against Jane Jones, for the purpose of having an alleged contract corrected and reformed and specifically enforced. The case was submitted to the court, without a jury, and the court made the following findings, to wit:

CONCLUSIONS OF FACT.

"1. On August 2, 1883, N. N. Jones (the husband of the defendant,) died, at Normal, Illinois, seized and possessed of E. 1/2 of N. E. 1/4 of N. E. 1/4 and S. E. 1/4 of N. E 1/4, sec. 19, township 3, range 21, in this county, being 60 acres, which land had been conveyed to him more than ten years before, by Cyrus Leland, senior.

"2. The plaintiff, a resident of Troy, had been corresponding with said N. N. Jones a short time before his death.

"On August 10, 1883, the defendant caused to be written and sent to the plaintiff here a postal card, as follows:

'NORMAL Aug. 10th, 1883.

'DEAR SIR: Received a letter from you the other day. Mr. N. N. Jones died the other day, Aug. 2d. Mrs. N. N. Jones owns all this property. She needs money now and will take $ 40 per acre cash if you can possibly take it on that terms. If not, how much can you pay down? On what terms can you take it? Answer in return mail, and oblige

'MRS. N. N. JONES.'

(Directed) 'Mr. Charles Burkhalter, Troy, Kansas.'

"Said postal card was received by the plaintiff about August 15th.

"3. About August 16th, the plaintiff answered said postal card as follows:

'TROY, KANSAS, August, 1883.

'MRS. N. N. JONES, Normal, Ill.--Dear Madam: Yours of 9th received. As regards the land that I have been corresponding with your late husband about, I made him an offer some time ago of $ 40 per acre. When I made that offer there was another party would have taken the south part of it at that price, and I was willing to pay that amount for the north part, but taking the whole of it together I think $ 35 is a big price for it. To buy the land now and pay cash down, and not get possession until next spring, and have the taxes to pay on it this fall, I would not want to pay over two thousand dollars for the sixty acres. And counting taxes and interest on the money, that would make it a little over $ 35 per acre. The other party will not stand in with me now. The land is rather in bad condition; it has been badly washed. If that will buy the land, I will take it and pay all the money down.

'Yours respectfully, C. BURKHALTER.

'P. S.--If that will buy the land, please let me hear from you soon. I have another trade in view here, which would conflict with this.

C. B.'

"Said letter was received by the defendant in due course of the mail.

"4. In reply to said last-mentioned letter the defendant caused to be written by postal card as follows:

'NORMAL, Aug. 21.

'DEAR SIR: We will accept your offer. Will have to know what sixty it is. Is it the land Leland owned before father bought it, and is it all together? You send check to First National Bank, and we will make out deed and everything necessary for transfer, and we will deliver papers at bank for you. Drop a card in regard to number of land.

'MRS. JANE JONES.'

(Directed) 'Charles Burkhalter, Troy, Kansas.'

"Said postal card was received by plaintiff here, August 22d or 23d, 1883.

"5. In response to said last-mentioned postal card, the plaintiff wrote as follows:

'TROY, KANSAS, Aug. 23, 1883.

'MRS. N. N. JONES, Normal, Ill.--Dear Madam: Yours of the 21st received this morning, and inclosed please find description of land. I think the better way would be for you to make out deed and send by express, C. O. D., as I will want to have deed examined to know that title is all right before paying money. You perhaps best have an attorney to make out deed for you, as he will be more apt to know what is necessary under the circumstances. Yours respectfully,

'CHARLES BURKHALTER.'

"Inclosed in said letter was a diagram of the quarter-section of land, showing the part described in conclusion of fact No. 1, as owned by N. N. Jones, and also purporting to show the parts of said quarter-section owned by others; and there was a written description of the land in controversy, except that it was stated to be in range 20, instead of range 21. Said letter and inclosure were received by the defendant in due course of the mail.

"6. On August 25, 1883, the defendant executed a deed, naming the plaintiff as grantee, and describing the land in accordance with said inclosure and as being in range 20, instead of range 21. The consideration named in the deed was $ 2,100. She delivered said deed to the First National Bank of Bloomington, Illinois, together with a copy of the letters testamentary of the estate of N. N. Jones, with instructions to deliver them to the plaintiff through Border Brothers, bankers at Troy, Kansas, on payment of $ 2,100 and charges, and said bank of Bloomington transmitted said papers to Border Brothers with said instructions, and further instructed them to deliver the papers to the plaintiff only on payment of $ 2,100, and the charges of Border Brothers, but to allow plaintiff to examine them. On Monday, September 27, 1883, said papers were received by Border Brothers, and the plaintiff was informed of the fact of their arrival.

"7. On the next morning, the plaintiff called at the bank of Border Brothers and examined the deed, and Border Brothers informed him of their instructions. The plaintiff told them that there was a mistake in the consideration of the deed; that he was to have the property for $ 2,000. He requested them to retain the deed until he could write to the defendant, but that if she would not take the $ 2,000 for it he would pay $ 2,100. He did not make any tender of money to Border Brothers, but he had made arrangements with them to borrow said sum of $ 2,000 from them so that he might pay for the land on delivery of the deed. On the same day he wrote to the defendant as follows:

'TROY, KANSAS, Aug. 28, 1883.

'MRS. JANE JONES, Normal, Ill.--Dear Madam: Your deed and papers were shown me this morning by Mr. Border, banker; papers and deed all right, with the exception of the amount to be paid for land. I think you will find by my letter in which I made you offer, that I stated that I would not pay over $ 2,000 for the sixty acres; that, counting taxes this fall and interest on money, would be equivalent to $ 35 per acre, or words to that effect; that is, by the time I could get possession the first of next March. Hoping that when you come to re-reading my letter you will see that I am correct in what I claim, you will have your bankers rectify the mistake, and oblige Yours respectfully,

'CHAS. BURKHALTER.

'P. S.--Please write me as soon as convenient, and oblige.

C. B.

'The offer was really 33 1/3 dollars per acre, but you will see on figuring the interest on two thousand from Sept. 1st to March 1st, 1884, together with about $ 40 taxes this fall, that I will be paying a little over $ 35 per acre.

C. B.'

"Said letter was received by the defendant in due course of the mail, probably the next day.

"8. Sometime between August 25 and August 31, 1883, Cyrus Leland carried on a telegraphic correspondence from Troy with the defendant, negotiating for the purchase of said land.

"A telegram in the name of J. B. Byers was, with the consent of said Byers, also sent by some other person, with a view to the purchase of said land. On August 31, 1883, said Cyrus Leland presented to Border Bros. a letter from the defendant, requesting them to return the deed and papers, and afterward, on the same day, Border Brothers returned said deed and papers to said bank at Bloomington.

"Afterward, on the same day, the plaintiff learned that said deed and papers had been returned at defendant's request, and he immediately thereafter commenced this action on the same day. At some time before the return of the deed the plaintiff told Border Brothers that he would take the loan of $ 2,000 anyhow, but they then declined to make the loan, stating as a reason that they did not want to get into any trouble on account of the land.

"9. On September 1, 1883, said bank at Bloomington and the defendant received said deed and papers, and on the same day the defendant executed to said Cyrus Leland, jr., a deed for the land in controversy for the sum of $ 2,400, and said deed was received by the grantee a day or two afterward, and the same was duly recorded September 8, 1883.

"10. On September 2, 1883, the defendant responded to the plaintiff's letter of August 28, 1883, as follows:

'NORMAL, ILL., Sept. 2.

'DEAR SIR: I think your letter needs no answer, but will say I never would give away land. I was not so hard up. I told you plainly I would not take less than $ 35 per acre. That was need of money; then you said you would fake it, but you did not. So I ordered papers sent back, and I sold it yesterday to Mr. C. Leland, jr., for $ 40 per a. Sorry you misunderstood my intentions, but can't be helped now. Respectfully,

'JANE M. JONES.'

"Said letter was received by the plaintiff in due course of the mail.

"11. On September 2, 1883, the defendant wrote to J. B. Byers in response to the telegram sent in his name, as follows:

'NORMAL, Sept. 2, 1883.

'DEAR SIR: You were too late. I have sold land to other parties for $ 40; I got a telegram last Tuesday, and deed has been sent. Much obliged to you for trying to sell land for me. I sold the land $ 10 per acre too cheap. Mr. Burkhalter misunderstood my letter, and he put me to a heap of costs and trouble. Mr. C. Leland got the land. Respectfully,

'JANE M. JONES.'

"Said letter was duly...