Osborne v. Kimball

• Decision Date: 09 March 1889
• Citation: 41 Kan. 187,21 P. 163
• Parties: RANSOM OSBORNE v. IRA KIMBALL
• Court: Kansas Supreme Court

21 P. 163

41 Kan. 187

RANSOM OSBORNE v. IRA KIMBALL

Supreme Court of Kansas

March 9, 1889

Error from Butler District Court.

REPLEVIN by Osborne against Kimball. Judgment for defendant, at the May term, 1887. The plaintiff brings the case to this court. The opinion states the case.

Judgment affirmed

Redden & Schumacher, and N. A. Yeager, for plaintiff in error.

Hamilton & Cubbison, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

Ransom Osborne and Ira Kimball are, and for several years last past have been, owners of adjoining farms in Butler county, where the herd law of 1872 is in force. On April 19, 1886, Osborne's cattle to the number of about 56, which were being fed on his farm, strayed upon the adjoining premises of Kimball, and there ate and destroyed quite a number of shocks of corn belonging to Kimball. Kimball at once took possession of the cattle, and claimed the right under the herd law to hold them until the damages which they had done were paid. On the following day Osborne instituted an action of replevin for the recovery of the cattle, and under an order of delivery issued therein they were delivered to him by the sheriff, and he still holds possession of the same.

It was admitted on the trial of the replevin action that Osborne was the owner of the cattle, and that he demanded possession of them from Kimball before bringing the action; and further, that the cattle described in the petition went upon the premises of Kimball and damaged his crops to the extent of $ 8. The case was submitted to the court without a jury, and it found and adjudged that Kimball was entitled to the possession of the cattle, and that the value of his right of possession was $ 8. The principal objection to the judgment is, that the court excluded testimony of a parol contract relating to the building of a fence between the two farms. Osborne testified that in 1880 he and Kimball entered into an agreement by which each was to build a certain share of the partition fence between the farms. There was some fence on the line at that time, and subsequently each built portions of a fence, although it appears that Osborne did not build what he called his portion for more than a year after the agreement was made, and it seems that the fence never was fully completed, as there were gaps or openings left through which cattle could and did pass. The division line intersected a creek, where it was difficult to make a fence, and there they deviated from the line. At one point Kimball built around the bend of the creek, away from the line, on his own land. In answer to a question as to what agreement was made between them, Osborne gave the following answer:

"I don't know that there was anything in particular, any more than he was to build a fence to keep my stock out, and I was to build a fence to keep his stock out, and so on. That is all I recollect about it. I don't recollect that there was anything in particular said. I guess there was not. Each was to build a fence that was to keep the other's cattle out."

He stated that the contract was made in 1880, and that it was a permanent one, to continue always. The court heard all the evidence offered by the plaintiff tending to establish the parol contract, and thereafter, on motion of the defendant very properly excluded the evidence and refused to consider the same. The contract was not in writing, and as it was to continue always it falls within the condemnation of the statute of frauds, which provides that no action shall be brought "upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized." (Comp. Laws of 1885, ch. 43, § 6.) It seems to be conceded that the contract was one which did not admit of possible performance within one year; but it is contended that it is taken out of the operation of the statute of frauds by partial performance. The doctrine of partial performance is not applicable to this class of contracts. It is confined only to those relating to lands, the non-execution of which would operate as a fraud upon the party who had made partial performance to such an extent that he cannot be reasonably compensated in damages. It is an equitable principle frequently invoked in actions for the specific performance of parol contracts for the purchase of land, under which possession has been taken, improvements made, and where there has been payment or partial payment of the purchase-price. The courts are slow to introduce additional exceptions or to depart further from the strict letter of the statute of...