Nason v. Patten

• Decision Date: 11 January 1913
• Docket Number: 17,876
• Citation: 129 P. 138,88 Kan. 472
• Parties: F. M. NASON, Appellee, v. J. P. PATTEN et al. (J. P. Patten, Appellant)
• Court: Kansas Supreme Court

129 P. 138

88 Kan. 472

F. M. NASON, Appellee, v. J. P. PATTEN et al. (J. P. Patten, Appellant)

No. 17,876

Supreme Court of Kansas

January 11, 1913

Decided January, 1913.

Appeal from Stevens district court.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACT--Demand for Performance--Reasonable Time to Comply. Where time is not of the essence of a contract to convey land, but is made essential by performance or tender of performance of one party and a demand on the other a reasonable time must be given for compliance with such demand.

2. JUDGMENTS--Rendered in Vacation--Void. A district court is without authority in vacation to render judgment in a case tried in term time and taken under advisement.

3. JUDGMENTS--Same. A judgment rendered in vacation upon a trial and submission at the preceding term should be set aside, and a judgment should be rendered at the next term.

John L. Gleason, of Liberal, and Solon W. Smith, of Oklahoma City, Okla., for the appellant.

C. V. Manatt, of Liberal, for the appellee.

BENSON J. MASON, J., dissenting in part.

OPINION

BENSON, J.:

This action was brought by the vendee in a contract for the sale of land to enforce specific performance and for damages, and was tried as an action to recover damages only. Judgment was given for the amount of an advance payment.

No conflict appears in the evidence. No default in the contract had been made by the vendor before the suit was brought, but he had conveyed the land to another who had purchased it in good faith. To sustain the judgment it must be presumed that the recovery was allowed upon the theory that the contract had been rescinded by consent of the vendor--considering the conveyance made by him as an abandonment of the contract, as he thereby disabled himself from performing it.

While it is a general rule that a purchaser who, without fault of the vendor, has failed to fulfill the contract can not recover an advance payment, yet this rule does not prevail where the contract has been abandoned or rescinded by consent of the party not in default. (Hillyard v. Banchor, 85 Kan. 516, 526, 118 P. 67; Phelps v. Brown, 95 Cal. 572, 30 P. 774; Richards v. Allen, 17 Me. 296; Andrews v. Brown, 57 Mass. 130; Fry on Specific Performance, 4th ed., § 1066.)

Time was not of the essence of the contract, but it was sought to make it essential by a notice to the vendee that he must pay the balance of the purchase money at a date stated in the notice. The time of performance according to the terms of the contract was May 10, 1910. At that time the deed from the vendor was on deposit at a designated bank, as provided in the contract, and the abstract, likewise so deposited, had been received by the vendee. The vendee failed to object to the title or pay the balance of the purchase as agreed, and a notice was served upon him by the vendor on that day, May 10, that unless such payment was made on or before May 12, at four o'clock P. M., the contract would be rescinded. The payment was not made, and on May 13 the vendor conveyed the land to another.

Where time is not of the essence of such a contract it may be made essential by performance or tender of performance by one party and demand on the other. (Roberts v. Yaw, 62 Kan. 43, 61 P. 409.) But a reasonable time must be allowed to comply with the demand. (Kirby v. Harrison et al., 2 Ohio St. 326; 6 Pomeroy's Equity Jurisprudence, § 815.) What is a reasonable time is a question to be determined from the circumstances of each particular case. (Mastin v. Grimes, 88 Mo. 478; Waterman of the Specific Performance of Contracts, § 465; 36 Cyc. 715.)

The amount to be paid in this instance was over $ 3000. The notice was served on the day the money was due. The notice gave less than two days in which to make payment. Immediately after the time so given had elapsed conveyance was made to another. No reason appears in the evidence and none is suggested why such haste was necessary or reasonable, and it can not be held as matter of law that a finding of the district court that the time given was not reasonable was erroneous. To uphold the judgment, it should be presumed that the court so found--and this finding is approved.

The judgment, although not erroneous for any reason already considered, must be set aside. The case was submitted on December 12, 1910, and decision was reserved to be announced at a later date. The term of court was adjourned without day on the 13th day of December. On March 11, 1911, a judgment was entered in vacation against the defendant for $ 156.75, the amount of the advance payment with interest. The judge had no power to render the judgment in vacation. (Earls v. Earls, 27 Kan. 538; Packard v. Packard, 34 Kan. 53, 7 P. 628; The State v. Start, 62 Kan. 111, 61 P. 394.)

A void judgment may be reversed on appeal. (Fleeman v. Railway Co., 82 Kan. 574, 109 P. 287.)

As the entry of the judgment recites a submission of the case on the 12th of December, 1910, and the rendition of judgment on the 10th of March, 1911, it is argued that it must be presumed from the record that the court was in session on the latter date. It would be so presumed from this alone, but there was another record, that of the adjournment of the term without day on the 13th day of December, 1910. It is argued that we can not consider the record of adjournment because it was not introduced in evidence in the district court on the motion for new trial or otherwise. It was not necessary that the record of its own adjournment should be presented in evidence to that court, since it was a matter of judicial knowledge. Again it is said that the entry shows that the motion for a new trial was overruled on December 12, 1910, when the case was submitted. We do not...