Hollis v. Burgess

• Decision Date: 05 November 1887
• Parties: SOLOMON M. HOLLIS, et al., v. ISAAC W. BURGESS
• Court: Kansas Supreme Court

15 P. 536

37 Kan. 487

SOLOMON M. HOLLIS, et al., v. ISAAC W. BURGESS

Supreme Court of Kansas

November 5, 1887

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from Norton District Court.

ACTION for specific performance of contract to convey real estate. Trial by the court, at the October Term, 1885. The court made findings of fact and conclusions of law as follows:

"1. On the 26th day of January, 1885, and for a long time prior thereto, the said Solomon M. Hollis was the owner of the foregoing described land, situate and being in the county of Norton, and state of Kansas, to wit: the southwest quarter of section number twenty-one, in township number two south, of range number twenty-two west.

"2. This tract of land was also called by and known as the 'Snow farm,' by both plaintiff and defendants, at prior and subsequent to the last-mentioned date.

"3. Said land was subject to a mortgage duly executed upon it, on and prior to said date, and still is so subject, in the sum of six hundred dollars, which remains wholly unpaid.

"4. On said date, and for a long time prior thereto, said Hollis was desirous of selling the land above described, and other land which he owned in Norton county, Kansas, and had at different times requested one Solomon Marsh, a resident of Norton county, Kansas, and a relation of the said plaintiff, to sell said land for him as his agent, the said plaintiff during all this time, and up to the present time, being a resident of Clay Center, Clay county, Kansas, and therefore unable to personally negotiate a sale of the lands to any parties in Norton county.

"5. On the 17th day of January, 1885, the defendant, Solomon M. Hollis, wrote a letter dated at Clay Center, Kansas, addressed to his agent, Solomon Marsh, at Norton, Kansas, in which letter Hollis stated as follows: 'Wish I could sell I. Burgess my land and stock and tools. I would sell cheaper now than I will ever again, as I am needing money; so if he has any notion of wanting to buy such a place, let him write me his highest figures and best terms.'

"6. This I. Burgess, named in this letter, is the plaintiff named in this case, and defendant Hollis meant plaintiff, when he wrote said letter. The contents of this letter were made known to Burgess by said Marsh in reference to the sale of the land, stock and tools, as stated therein and as above quoted; and in answer to the same, Marsh wrote Hollis a letter dated January 20, 1885, at Norton, Kansas, in which he stated: 'Ike Burgess says that your figures on the land are very much too high for him. He will look at the cattle and let you know soon what he thinks.'

"7. Again on the 22d day of January, 1885, Marsh wrote to Hollis another letter, in which he states: 'I have urged Ike Burgess to buy the Snow place of you, and he told me this morning if I had a mind to write to you an offer for it of $ 1,200, he would assume the mortgage of $ 600 and give you $ 600 in cash in thirty days. I have got his money borrowed for that length of time. Ike is about the only man that I know of that has got the money, and I tell you that they are all after him to get hold of it, that have got land to sell. He is offered a place four miles from town. It is as nice a prairie claim as that Peterson claim that we looked at right north of the Tom Brown land. It has eighty acres broke on it and a good sod house, and he has a strong notion of buying it, but he will not be likely to do anything about it for a few days. Write as soon as you get this.'

"8. In answer to this last letter of Marsh to Hollis, Hollis, on the 23d day of January, 1885, from Clay Center, Kansas, wrote as follows to Marsh:

"'CLAY CENTER, KAS., Jan. 23, 1885.--Cousin Solomon: Yours rec'd. I hardly know just what to say about selling Snow place, but I think I would sell at the price, if Ike would keep what stock I may have left from March 1 to July 1. Of course I should sell before July, if I could get a fair price. I will not say that I will sell in this now, as I want to talk with Mrs. Hollis about it, but you or he can write me what he will do.'

"9. Upon the receipt of this letter by Marsh, Marsh read the same to Burgess and acquainted him with the proposition of Hollis about the terms and conditions upon which he, Hollis, would sell the land. Burgess then notified Marsh that he would accept the offer so made by Hollis, and would purchase the land of Hollis according to his terms as stated in this letter, and instructed Marsh to so write to Hollis, which Marsh did, on the 28th of January, 1885. (This last letter was not introduced in evidence, and therefore the court cannot give more than the substance thereof as shown by the evidence.)

"10. In answer to this last letter of Marsh to Hollis, Hollis on the 26th day of January, 1885, wrote as follows:

"'CLAY CENTER, KAS., Jan. 26, 1885.--Cousin Solomon: Your postal and letter at hand, and in reply will say that we will sell the Snow place, Burgess to pay $ 600 within one month and assume the mortgage, and keep my stock from March 1, to July 1, feed to be found until grass; he to salt and look after them and take good care of them. He to have possession March 1, or before if D. Wood is willing. I would like very much if he can pay me $ 150 or $ 200 by February 10. I have a note due by that time; have plenty due me, or will have by that time, to pay what I owe, if I can only collect. We will make out deed and put in F. N. bank here, and they send Ike deed when payments are made if this will do. Wood is to have hay and stalks or straw enough on place to keep the stock out to grass. Hope you will be able to sell the other place. I shall look to you somewhat, and expect that you will see that the stock is well kept in case Ike buys.'

"11. Marsh received this letter on the following day, January 27, about 11 o'clock A. M., and about the same time made the contents thereof known to Burgess; and on the same day, by instruction and request of Burgess then given to Marsh, Marsh wrote Hollis the following:

"'NORTON, KAS., Jan. 27, 1885.--Mr. S. M. Hollis--Dear Sir: I have just received your letter. Ike excepts your proposition, and with regard to the $ 150 that you spoke of, he says he will send you $ 100, and you must try and get along with that till thirty days are up, and then it will be forthcoming, as I have all the money in my possession. If you do not want to send the deed to your agent, please hold it or send it to Norton County bank. You will find inclosed draft for $ 100. With regard to the stock, I think Ike will take good care of them. I do not think you will lose any more of them unless it is some of the calves at Thompson's. They are very poor, but I will do all I can to have them taken care of.'

"12. On the 27th day of January, 1885, the defendant Solomon M. Hollis and James E. Alsop had a conversation at Clay Center, Kansas, in which Alsop told Hollis he, Alsop, would like to buy all of Hollis's land in Norton county, including the Snow farm, and all the cattle of Hollis in Norton county, Kansas. In this conversation Hollis told Alsop that he expected that he had sold the Snow farm to Isaac W. Burgess; of having sent the letter of the 26th of January, above described, and the terms and conditions of said alleged sale of the land to Burgess; and Hollis and Alsop then and there entered into a verbal agreement that Alsop should purchase of Hollis all the land belonging to Hollis situate in Norton county, Kansas, including the Snow place, and also Hollis's cattle then in Norton county, Kansas. Hollis then, on said day, after having the conversation with Alsop as above stated, sent the following message by telegraph to Marsh:

"'CLAY CENTER, KAS., Jan. 27, 1885.--To Sol. Marsh, Norton, Kan.: I have sold my whole property in Norton county, to-day.--[Signed] S. M. HOLLIS.' "Afterward, and on the same day, Hollis sent Marsh a letter as follows:

"'CLAY CENTER, KAS., Jan. 27, 1885.--Cousin Solomon: No doubt but that you have received my telegram before this, and no doubt but that you were very much surprised when you received it. Alsop came down last night to buy me out, and made a good offer and takes land, stock and tools. I held off for quite a while, hardly knowing whether I ought to sell, still wanting to close all out at once. Inasmuch as Burgess had come so near buying another place, even if it was a little disappointment to him, it would not make the difference to him that it would to me. I was anxious to get those cattle off my hands before any more of them should die. For what trouble you have been to to sell for me, send in your bill. Another reason why I rather sell all out, I am getting more money to use and pay up where I am owing, and it will make me feel better. If you have to pay for the dispatch from Edmund over, Alsop is to pay you. Jim says tell you he expects to start for Norton to-morrow night unless too cold. Have not time to write more to-day.'

"13. This dispatch and letter were received by Marsh on the 28th day of January, 1885, and the contents were on said day made known to Burgess. In answer to the dispatch and letter, Marsh wrote to Hollis as follows:

"'NORTON KAS., Jan. 28, 1885.--Mr. S. M. Hollis--Dear Cousin: I have just received your dispatch, and in reply will say that it will be impossible to mend what has been done here with reference to the sale of your land to Ike Burgess. He has already taken possession of the place, David Wood having given his consent for him to take immediate possession. He has a carpenter at work there to-day repairing the house, and positively refuses to give up the place, but is willing to comply with his part of the contract in every particular. I have acted as your agent, and...