Ely v. Jones
| Decision Date | 10 November 1917 |
| Docket Number | 20,149 |
| Citation | 101 Kan. 572,168 P. 1102 |
| Parties | JAMES E. ELY, Appellee and Appellant, v. C. JONES, Appellant and Appellee |
| Court | Kansas Supreme Court |
Decided July, 1917.
Appeal from Comanche district court; GORDON L. FINLEY, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. NEW TRIAL--Affidavit--Witness Changing His Testimony. In the circumstances stated in the opinion, it is held that it was not error to grant a new trial upon the strength of an affidavit of a witness qualifying certain testimony given by him at the trial.
2. EXECUTORY CONTRACT -- Sale of Land -- Rescission by Parol -- Not Within Statute of Frauds. An agreement to rescind an executory contract for the sale of lands is not within the statute of frauds, and may be proved as any other simple contract.
3. SAME--Valid Parol Contract. When the contract rests only in parol, partial or full performance is necessary to its validity.
4. SAME--Agreement to Rescind Contract--Consideration--Surrender of Mutual Rights. The consideration for such an agreement may consist in the mutual promises of the parties by which they agree to surrender their mutual rights under the original contract.
5. SAME. In this case, while the answer pleaded a consideration for the agreement which would not in law be sufficient, a promise to do that which the defendant was already bound to do, it is held that there was a sufficient consideration because the agreement could have no other effect or result than the surrender of mutual rights acquired under the original contract.
6. SAME--Former Decision Disapproved. Certain expressions in the opinion in Carr v. Williams, 17 Kan. 575, are disapproved.
John W Davis, of Greensburg, for the appellant.
Jay T. Botts, of Coldwater, for the appellee.
OPINION
This is an appeal by the defendant below from an order granting a new trial. The action was one to recover damages for the alleged breach of a written contract between plaintiff and defendant, by which plaintiff sold to the defendant a farm for the consideration of $ 5,600. The petition alleged that the defendant had repudiated the contract and refused to perform it, and that plaintiff had been thereby damaged in the sum of $ 1,600.
The answer pleaded a general denial, and in addition the specific defense that the contract had been rescinded by a subsequent oral agreement of the parties. There was a trial by a jury and a verdict for the defendant. The ground for granting a new trial, as set forth in writing by the court, was the affidavit of W. S. Monger, a witness who testified on behalf of the defendant, which satisfied the court that his testimony given at the trial was largely untrue.
With their verdict the jury returned the following answers to special questions:
The defendant argues that "upon the issue presented in the second question, which was whether or not any damages resulted from the alleged breach of the contract," the jury found for the defendant, and inasmuch as none of the testimony given by the witness Monger related to the question of damages, the defendant was entitled to judgment on the finding as to value irrespective of the other issue in the case, and that it was error to grant a new trial. To this contention we can not agree. It erroneously assumes that plaintiff was seeking to recover the difference between the market value of the land on April 12, 1913, when the contract of sale was made, and the market value in July, 1914, when the contract was either repudiated by the defendant, or, as he contends, set aside by an oral agreement. By the written contract defendant agreed to pay $ 5,600 as the consideration for the land. The contract nowhere states what the market value of the land was at that time. The plaintiff may have made an advantageous bargain; he may have sold the land for much more than it was then worth on the market, in which case, unless the contract was in fact canceled by agreement of the parties, he would be entitled to recover the difference between the contract price and what the land could be sold for at the time the contract was breached. The finding of the jury, that there was no depreciation in the market value of the land from the time of the sale until July, 1914, decided no issue directly involved in the case.
It is also insisted by the defendant that a comparison of the testimony of the witness Monger with the statements in his affidavit shows that the trial court was mistaken in assuming that the affidavit tended in the slightest degree to contradict the testimony given by the witness at the trial. While there is no direct statement in the affidavit to the effect that the witness had testified falsely as to any material fact on the trial, it contains sufficient, in our opinion, to justify the court in concluding that plaintiff had not had a fair trial upon the question as to whether any oral agreement to cancel the contract was in fact made. On this issue the burden was on the defendant; his own testimony contains so many contradictions, so much uncertainty as to what was actually said in the alleged conversations between himself and the plaintiff, that it is far from satisfactory, and the court committed no error or abuse of discretion, in view of all the circumstances, in granting a new trial on the ground of the statements contained in the affidavit of the witness Monger.
There is a cross appeal by the plaintiff in which it is urged that the court erred in admitting any testimony in reference to the rescission and should have sustained a demurrer to the evidence. The contention is urged on two grounds: first, that the alleged agreement for a rescission is void under the statute of frauds because it was not in writing and not fully executed; second, because there was no consideration for the agreement. He concedes that the authorities are squarely in conflict upon the question whether such a contract falls within the statute, but in the court below he relied upon the case of Carr v. Williams, 17 Kan. 575, and cites that case in the briefs as authority for his contention.
In passing upon the other grounds of the motion for a new trial, the trial court held that the case of Carr v. Williams, supra, was not controlling, because the plaintiff in that case, Carr, was standing upon the contract and seeking to recover the purchase price of the land, "while in the case at bar Mr. Ely is not standing upon the contract, but claims rescission." As there must be a new trial of the case, it is deemed proper to make some comment upon the case of Carr v. Williams. The theory of the trial court that the plaintiff in this case is not standing upon the contract was clearly erroneous. The action is not based upon any claim by the plaintiff that there had been a rescission; on the contrary, the plaintiff's cause of action is placed squarely upon an alleged breach of the contract by defendant's refusal to comply with its terms. A vendor affirms the contract by suing in equity for specific performance, or at law for damages for a breach of the contract. (Maupin on Marketable Title to Real Estate, 2d ed., p. 580.) For reasons which will be stated, however, we think the court was right in holding that the case of Carr v. Williams, supra, was not controlling.
In that case, when the supposed contract of rescission was made, the legal title to the property was in Carr, and the equitable title was in Stanton, who transferred his interest to Williams. By the contract of rescission the equitable title was to pass back to Carr. In the opinion, Justice Valentine, speaking for the court, said:
(p. 582.)
The opinion, so far as we are aware, has never been cited or referred to in subsequent opinions of this court. It is cited in Cutwright v. Savings & Investment Co., 33 Utah 486, 495, 94 P. 984, where a distinction is drawn on the ground that the contract referred to in the opinion was merely executory. It is cited in a note to the same case in 14 American and English Annotated Cases, 729, as one of the cases supporting the view that an agreement to cancel a written contract for the sale of land is void under the statute of frauds, unless in writing or fully executed. The statement in the opinion, that such a contract is void under the statute of frauds, is opposed to the weight of modern authority. It was not necessary to a decision of the case which really turned upon the fact that the parties who relied upon the parol contract of rescission had failed to perform any part of it themselves. In Evans v. Jacobitz, 67 Kan. 249, 72 P. 848, it was held that consent of the parties to rescission of a contract for the sale of lands "may be implied from the circumstances and...
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