French v. Wade

• Decision Date: 04 June 1886
• Citation: 35 Kan. 391,11 P. 138
• Parties: DAPHNEY FRENCH, et al., v. H. A. WADE
• Court: Kansas Supreme Court

11 P. 138

35 Kan. 391

DAPHNEY FRENCH, et al., v. H. A. WADE

Supreme Court of Kansas

June 4, 1886

Error from Labette District Court.

THE opinion contains a sufficient statement of the facts. Trial at the May Term, 1884, and judgment for plaintiff Wade. The defendants bring the case here.

Judgment reversed.

Perkins & Morrison, for plaintiffs in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The averments in the amended petition filed by the plaintiff below, who is defendant in error here, were, in substance that on the 20th day of December, 1874, Peter French sr. was the owner of lot 16 in block No. 3, in the city of Parsons, and that about that time he and his wife Daphney French, through James W. French, who was their duly-authorized agent for that purpose, entered into a verbal agreement to sell the lot to the plaintiff Wade for the sum of $ 375, which sum was to be paid by the plaintiff within a reasonable time thereafter upon the execution and delivery to him of a good and sufficient deed to the premises. A part of the alleged agreement was that Wade might enter and take possession of the lot upon payment of the purchase-money; and it was averred that on March 15, 1875, and within a reasonable time after the making of the agreement, he paid to Peter French sr. the full amount of the purchase-money, and demanded a deed of general warranty to the lot. He states that upon the payment of the purchase-money he took possession of the lot under the agreement, and has retained the same ever since, and that during that time he has expended the sum of $ 400 in making valuable and permanent improvements thereon. It is further alleged that after the making of the verbal agreement, the payment of the purchase-money, and the taking of possession by the plaintiff, Peter French sr. and Daphney French, by James W. French, their agent authorized by parol, executed and delivered to the plaintiff their written contract for the sale of the lot, a copy of which is set out, and is in form an absolute conveyance. It is further averred that on October 17, 1876, Peter French sr. died intestate, leaving defendants as his heirs at law. It is then stated that on or about August 1, 1883, he demanded of the defendants a conveyance of the lot in accordance with the agreement mentioned, but that they had failed and refused to convey the same by quitclaim deed or otherwise, and that Peter French sr. did not in his lifetime convey said premises to the plaintiff except as hereinbefore stated, and the plaintiff therefore prayed that the defendants be ordered to convey their interest and title in the lot to the plaintiff, and that the plaintiff's title and possession be quieted in him.

The defendants denied the selling of the lot by Peter French sr and denied that James W. French was at any time the authorized agent of Peter French sr. and Daphney French, to act for or represent them in the sale of the premises, or in the making of the agreement alleged by the plaintiff, and they claim the property as the heirs-at-law of Peter French sr. At the trial a jury was impaneled to whom the principal questions of fact arising under the pleadings were submitted, and upon which findings were made. One of the most important controverted questions submitted was, whether James W. French was the authorized agent of Peter French sr. and Daphney French, his wife, in the sale of the lot in question. This question...