Hull v. Allen

• Decision Date: 11 March 1911
• Docket Number: 16,787
• Citation: 113 P. 1050,84 Kan. 207
• Parties: RAY HULL, Appellant, v. B. D. ALLEN, Appellee
• Court: Kansas Supreme Court

113 P. 1050

84 Kan. 207

RAY HULL, Appellant, v. B. D. ALLEN, Appellee

No. 16,787

Supreme Court of Kansas

March 11, 1911

Decided January, 1911.

Appeal from Sedgwick district court.

Judgment Affirmed

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS--Advancements--Forfeiture. A purchaser of land who makes a deposit of money, under a written contract that if the balance of the consideration is not paid as agreed upon the deposit will be forfeited, can not recover the deposit if the consideration is not paid and the contract carried out because of his fault.

2. CONTRACTS--Waiver of Performance of Conditions. Where the contract provided that the seller was to furnish an abstract of title within a stated time, and that if he did not furnish the abstract, together with a warranty deed, in accordance with the agreement the deposit should be returned to the purchaser, and where before the time for furnishing the abstract the purchaser instructed the seller not to furnish it, and notified the seller that he would not carry out the contract, he thereby waived the furnishing of the abstract, but was not relieved from the obligations of the contract.

3. EVIDENCE--Parol or Extrinsic--Waiver of Performance of Contract. Testimony showing a waiver of performance is not inadmissible on the ground that it varies or modifies the written contract.

E. L Foulke, and C. A. Matson, for the appellant.

Kos Harris, and V. Harris, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action to recover $ 200 deposited as a forfeit on an agreement to buy land. On December 8, 1906, B. D. Allen agreed to sell twenty-five acres of land to Ray Hull for $ 3000, $ 200 to be paid in cash and the balance of the consideration to be paid when conveyance was made and an abstract showing good title was furnished, which was to be sent to Hull, at Burnside, Ill., where he resided. It was stipulated that the $ 200 which was paid to Allen was to be forfeited if Hull failed to carry out the contract and pay the balance of the consideration, but that if Allen failed to furnish a warranty deed and an abstract showing good title to the land, in accordance with the agreement, the $ 200 was to be returned to Hull. The abstract was not sent to Hull at Burnside, Ill., and he therefore claimed a recovery of the 200-dollar deposit. Allen, on the other hand, claimed that Hull induced him to withhold the abstract, and that as Hull refused to carry out the agreement and pay for the land the $ 200 had been forfeited.

The testimony on which a verdict was based is that the day following the execution of the agreement Hull directed Allen not to send the abstract and the papers to Illinois until his father and mother, who were to furnish the money, came from Illinois and inspected the land, and that they were expected in about two weeks. It appears that they did come and look at the land, but according to Allen's testimony they did not sanction the purchase made by Ray Hull, and he afterward notified Allen that he would not take or pay for the land and that Allen need not send the papers to Illinois. There was conflicting testimony on some of these matters, but the conflict was settled in favor of Allen by the verdict of the jury. Hull appeals, and insists that the testimony relating to the inspection of the land by his father and as to the latter's advice and nonapproval of the purchase, as well as his (appellant's) instructions not to send the abstract, amounted to an alteration of the contract, and that, as it was one relating to real estate, the evidence was not competent. This claim is without merit. The testimony did not vary the written contract, but only related to its performance. The appellant in effect says: "You did...