Greenlees v. Roche

• Decision Date: 09 April 1892
• Parties: J. R. GREENLEES v. MAURICE ROCHE
• Court: Kansas Supreme Court

29 P. 590

48 Kan. 503

J. R. GREENLEES v. MAURICE ROCHE

Supreme Court of Kansas

April 9, 1892

Error from Lane District Court.

THE opinion states the facts. Judgment for plaintiff, Roche, at the May term, 1889. The defendant, Greenlees, brings the case to this court.

Judgment affirmed.

B. H Tracy, and C. D. Pillsbury, for plaintiff in error.

T. J Womack, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Lane county on January 14, 1889, by Maurice Roche against J. R. Greenlees, to recover a judgment for $ 1,350, an alleged balance due on sale of certain real estate, with interest, and to sell the real estate to satisfy such judgment. The original foundation for the action was a certain title-bond stipulating for the conveyance of such real estate by Roche to Greenlees upon certain terms and conditions, which bond was signed only by Roche. This bond was attached to and made a part of the plaintiff's petition. The defendant demurred to such petition upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer the court overruled; and for the reversal of this ruling the defendant, as plaintiff in error, has brought the case to this court.

The only question which has been presented, either to the court below or to this court, is, whether the petition of the plaintiff below stated facts sufficient to take the contract made by the parties for the sale and purchase of the real estate out of the statute of frauds. The contract was of course only an executory one, relating to the purchase, sale and conveyance of certain real estate upon certain terms and conditions, and was not an executed contract of purchase and sale; and as it was signed only by the vendor, and not by the vendee, the vendor cannot maintain an action upon it against the vendee unless there are still other facts, extraneous to the contract but taking place because thereof, which will take the contract out of the statute of frauds. ( Guthrie v. Anderson, 47 Kan. 383, 28 P. 164; same case, 28 P. 164.) The facts alleged in the plaintiff's petition, and relied on by him to take the case out of the statute of frauds, are the following: Roche, the vendor, executed the bond, signed his name to it, delivered it to the vendee, Greenlees, who accepted the same, paid the vendor $ 450 of the purchase-money for the property to be conveyed, accepted and received the possession of the property, exercised acts of ownership over it, placed it in the hands of several real-estate agents for sale, and agreed that if it should be sold he would execute warranty deeds to the purchasers for the premises; and he is still in the possession of the bond, holding it as a valid and existing obligation against the plaintiff, and is still in the exclusive possession of the property, exercising acts of absolute ownership over it; and all this the plaintiff as vendor permits the vendee to do, and claims only the remainder of the purchase-money and a lien upon the land therefor, and tenders to the vendee a good and sufficient warranty deed for the land, in compliance with the terms of the bond, and asks that the land shall be sold for the purpose of satisfying the remainder of the purchase-money.

Are all or any of these things sufficient as a part performance of the original contract to take the case out of the statute of frauds? The acts of part performance must be those of the plaintiff, who in this case is the vendor. (8 Am. & Eng Encyc. of Law, 740; Browne on Frauds, § 453.) They need not, however, be the acts of the plaintiff alone or exclusively, but they may in some cases be his acts in connection with the acts of the defendant. And they need not in all cases be acts of commission, but they may in some cases be acts of permission. They must, however, be acts done or permitted by the plaintiff which he would not have done or permitted except for the...