Parks v. Monroe

• Decision Date: 09 December 1916
• Docket Number: 20600
• Citation: 161 P. 638,99 Kan. 368
• Parties: PARKS ET UX. v. MONROE ET UX.
• Court: Kansas Supreme Court

161 P. 638

99 Kan. 368

PARKS ET UX. v. MONROE ET UX.

No. 20600

Supreme Court of Kansas

December 9, 1916

Syllabus

Where one of the parties to a contract for the exchange of real property repudiates the contract before the time fixed for its performance, and notifies the other party of such repudiation, the latter party may immediately commence an action for specific performance, or, in the event that specific performance cannot be had, for the recovery of the damages sustained.

A judgment by which a demurrer to a petition is sustained, and from which no appeal is taken, does not control the judgment on the hearing of a demurrer lodged against an amended petition afterward filed by leave of court.

Appeal from District Court, Mitchell County.

Action by Geo. B. Parks and wife against H. W. Monroe and wife. From judgment sustaining demurrer to the amended petition plaintiffs appeal. Reversed and remanded, with directions.

Lutz &amp Jordan, of Beloit, and J. W. Tucker, of Cawker City, for appellants.

Smith & Else, of Cawker City, for appellees.

OPINION

MARSHALL, J.

The plaintiffs appeal from a judgment sustaining a demurrer to their amended petition.

The amended petition sets out a valid written contract between plaintiff George B. Parks and defendant H. W. Monroe, for the exchange of lands. The contract, dated April 8, 1915 provided that defendant H. W. Monroe should deed to plaintiff Geo. B. Parks certain lands in Mitchell county, Kan.; that Parks should deed to Monroe certain lands in Howell county, Mo.; that Parks should assume a $7,500 mortgage on the Kansas land and pay to Monroe the sum of $2,400; that the deeds should be delivered and the $2,400 be paid on November 20, 1915; that Monroe should occupy the Kansas land until that time, and should pay, as rent to Parks, certain named shares of the crops to be grown thereon; that each party should furnish an abstract "down to date," and should "make a perfect title to the land he conveys"; that Monroe should have until April 15, 1915, to inspect the Missouri land, and, if it should be found as described in the contract, all papers necessary to comply therewith should at once be executed.

The amended petition alleges that Monroe inspected the Missouri land and found it as described, and alleges that the Missouri land is, in fact, as described in the contract. The amended petition further alleges:

"And said defendants have orally informed and notified plaintiffs that they will not execute said deed or furnish said abstract, and they do not intend to and will not pay plaintiffs any rents whatsoever for said premises, and have stated that so far as they, the said defendants, are concerned said contract is at an end. * * * The plaintiffs have duly performed all of the conditions of said contract on their part to be performed up to this time and are now standing willing, ready and able to complete the performance of said contract on their part, and now offer to bring said deed and abstract to said Missouri land and said $2,400 into court to be delivered to the defendants upon their executing and delivering to the plaintiffs a sufficient deed and abstract for said Mitchell county lands and upon their paying said rents to said plaintiffs as provided in said contract. * * * That if an exchange of said properties as contemplated by said written agreement is not effected the said plaintiffs will be damaged in the sum of $2,000."

The amended petition also alleges that the plaintiffs, Geo. B. Parks and Sena M. Parks, are husband and wife, and that the defendants, H. W. Monroe and Effie Monroe, are husband and wife.

The plaintiffs ask for specific performance of the contract, or, if that cannot be given, for damages in the sum of $2,000. The original petition was filed July 1, 1915.

1. Does the amended petition state a cause of action? The defendants urge that the action was prematurely...