Hollingsworth v. Colthurst

• Decision Date: 03 July 1908
• Docket Number: 15,606
• Citation: 78 Kan. 455,96 P. 851
• Parties: AMANDA H. HOLLINGSWORTH v. GEORGE COLTHURST
• Court: Kansas Supreme Court

96 P. 851

78 Kan. 455

AMANDA H. HOLLINGSWORTH v. GEORGE COLTHURST

No. 15,606

Supreme Court of Kansas

July 3, 1908

Decided July, 1908.

Error from Cowley district court; CARROLL L. SWARTS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

SALES--Abstract of Title--Refusal to Accept Proffered Title. A contract for the sale of land provided that the vendor should furnish an abstract showing satisfactory title to the property. In an action against the vendee for damages for his failure to perform it was alleged that the vendor furnished an abstract showing a good and sufficient title. Held: (1) The vendee was the party to be satisfied. (2) It was immaterial that the title was good if the vendee in good faith was not satisfied with it. (3) In order to withstand a demurrer it was essential that the petition either allege that the title was satisfactory to the vendee or show that the vendee did not act in good faith.

James McDermott, for plaintiff in error; G. H. Buckman, of counsel.

W. P Hackney, and J. T. Lafferty, for defendant in error.

OPINION

BURCH, J.:

The plaintiff sued for stipulated damages claimed to have been suffered on account of the defendant's refusal to carry out a contract for the purchase and sale of real estate. The transaction involved an exchange of land, and the contract contained the following provision: "It is further agreed and understood by the parties to this contract that each party shall furnish an abstract showing satisfactory title to the above-named properties."

The petition did not allege that the plaintiff furnished an abstract showing satisfactory title to his land, or that the defendant refused to receive an abstract of title or to investigate the title offered, or that the defendant arbitrarily or capriciously rejected such title or otherwise acted in bad faith in the matter. It was merely stated that the plaintiff furnished an abstract showing a good and sufficient title, and that the defendant refused to accept a warranty deed free of encumbrances. A demurrer to the petition was sustained, and the plaintiff prosecutes error.

The question involved is not a new one in the law, and this court has already indicated its views respecting the principles to be applied. Parties to a contract may lawfully stipulate that performance by one of them shall be to the satisfaction of the other. The obligation of a contract is not destroyed because it contains such a provision, as Chancellor Kent seems to have believed. (Folliard v. Wallace, 2 Johns. 395.) If such a contract be made, the party to be satisfied is the judge of his own satisfaction, subject to the limitation that he must act in good faith. He should fairly and candidly investigate and consider the matter, reach a genuine conclusion, and express the true state of his mind. He can not act arbitrarily or capriciously, or merely feign dissatisfaction. The application of these principles is not limited to transactions involving personal taste and preference. All this follows from the decision in the case of Campbell v Holcomb, 67 Kan. 48, 72 P. 552. In the following cases the principles upon which Campbell v. Holcomb was determined were applied to transactions involving the title to real estate: Stotts v. Miller, 128 Iowa 633, 105 N.W. 127; Liberman v. Beckwith, 79 Conn. 317, 65 A. 153; Averett, Trustee, and als. v. Lipscombe, 76 Va. 404; Church v. Shanklin, 95 Cal. 626, 30 P. 789, 17 L. R. A. 207. Very respectable courts hold contrary views, but this court is not disposed to follow them, believing...