Burns v. Hunter

• Citation: 271 P. 398,126 Kan. 736
• Decision Date: 03 November 1928
• Docket Number: 28,270
• Parties: CHRIS J. BURNS, Appellant, v. R. D. HUNTER, Appellee
• Court: United States State Supreme Court of Kansas

271 P. 398

126 Kan. 736

CHRIS J. BURNS, Appellant, v. R. D. HUNTER, Appellee

No. 28,270

Supreme Court of Kansas

November 3, 1928

Decided July, 1928.

Appeal from Dickinson district court; CASSIUS M. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TRIAL--Instructions--Failure to Object--Erroneous Instruction as Law of Case. In an action to recover an advance payment on the purchase price of sixty-five shares of bank stock under a written contract, where evidence had been introduced showing negotiations between the parties for a modification of the contract so as to apply to fifty-one shares instead of the stipulated sixty-five shares, and where the trial court without objection, instructed that there was no evidence that such modification was effected and that the jury should wholly disregard that evidence, and where no error is assigned on such instruction, the trial court's ruling and instruction are controlling so far as they deal with that feature of the case.

2. SALES--Rescission and Acquiescence--Issues and Proof. In an action to recover an advance payment on the purchase price of 65 shares of bank stock, the record examined, and held, that the pleadings and evidence raised no issue requiring the court to give instructions to the jury covering the law of rescission and acquiescence, nor of the law pertaining to the rights of the parties where there has been a mutual abandonment of a contract.

3. SAME -- Bank Stock -- Recovery of Advance Payment -- Special Questions. Special questions prepared by plaintiff for submission to the jury considered, and held that their rejection was not error.

C. W. Burch, B. I. Litowich and La Rue Royce, all of Salina, for the appellant.

S. S. Smith, of Abilene, for the appellee.

Dawson J. Burch, J., not sitting.

OPINION

DAWSON, J.:

This was an action to recover $ 1,000 which defendant received from plaintiff as an advance payment pursuant to a written contract for the purchase of sixty-five shares of bank stock. The contract was not carried into effect; defendant refused to return the down payment; and in the lawsuit which followed plaintiff was defeated, and appeals, assigning error on the trial court's refusal to give certain instructions and to submit certain special questions to the jury requested by plaintiff. The one special question submitted to the jury and the answer returned read:

"Q. Did the defendant refuse to deliver, transfer and assign sixty-five shares of the capital stock of the Carlton State Bank to the plaintiff upon November 10, 1926? A. No."

Appellant opens his argument thus:

"There is really but one question for determination in this case in this court. Did the trial court err in refusing plaintiff's request for its several special instructions concerning rescission of the contract by either of the parties and acquiescence by the other; and abandonment of the contract by both parties or by the defendant; and in refusing the plaintiff's request for the submission of special questions to the jury."

It is difficult to discern any issue of rescission and acquiescence in this case. Plaintiff's petition did allege that after making the written contract for the sale of defendant's sixty-five shares of bank stock, there were negotiations between the parties relative to a reduction of the number of shares which defendant was to sell. But the trial court disposed of that matter by an instruction to which no objection was made in the trial court and on which no error is assigned in this appeal. It reads:

"Some evidence has been introduced as to negotiations between the parties for a modification of the written contract so that it would apply to fifty-one shares instead of sixty-five shares of the capital stock of said bank, but you are instructed that there is no evidence that such a modification of said contract was ever consummated, and the evidence in that regard should therefore be wholly disregarded by you."

This instruction became the law of that feature of the case with which it dealt. (Duigenan v. Claus, 46 Kan. 275, 26 P. 699; Dryden v. C. K. & N. Rly. Co., 47 Kan. 445, 28 P. 153; Railway Co. v. Schroll, 76 Kan. 572, 92 P. 596; 14 R. C. L. 808, 822.)

Following the failure of the negotiations to change the number of shares, plaintiff's version of the facts reads:

"A. I went back there on the tenth. . . .

"Q. Now the tenth was the date mentioned in the contract as to when you should pay the balance on the contract--the balance of the money? A. Yes.

"Q. And get your stock? A. The tenth was the day that our contract was supposed to be closed and complete. . . .

"Q. Well, when you got down there what if anything did you say to him and what did he say to you about closing up this deal? A. I told him that I came down to close the deal with him that day, and he said that he didn't care to discuss it any further, and he didn't believe that he was ready to do anything right now, and he gave me to understand . . .

"Q. What did he do? A. Well he turned around, turned his back to me and walked off and went to work at his books. . . .

"Q. You went home? A. Yes, sir.

"Q. Did you ever go back? A. I went back on the 12th. . . .

"Q. And did you find Mr. Hunter at the bank that day? A. Yes . I introduced Mr. Gemmill, and I told him that I came down to close up the deal.

"Q. What, if anything, did Mr. Hunter say? A. He said that he didn't think that we could do anything on the closing of the deal, and I told him then that if we couldn't do anything on the close of the deal and he wanted to pass it up that I wanted my money back, and he turned around and walked over...