Peckham v. Lane

• Decision Date: 08 January 1910
• Docket Number: 16,248
• Citation: 81 Kan. 489,106 P. 464
• Parties: ED L. PECKHAM, Appellant, v. M. J. LANE AND GERALDINE LANE et al., Appellees
• Court: Kansas Supreme Court

106 P. 464

81 Kan. 489

ED L. PECKHAM, Appellant, v. M. J. LANE AND GERALDINE LANE et al., Appellees

No. 16,248

Supreme Court of Kansas

January 8, 1910

Decided January, 1910.

Appeal from Barber district court; PRESTON B. GILLETT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS--Specific Performance--Statute of Frauds. The statute of frauds does not prevent the maintenance of an action for the specific performance of a contract by which the defendant, being the owner of a tract of land, agreed to convey a portion of it of a certain size, to be selected by himself, to the plaintiff.

2. CONTRACTS--Same. Where in such an action the plaintiff asks for the conveyance of a specific tract, upon the ground that the defendant had selected it, although such selection may be ineffective because not made in writing, the petition is not on that account demurrable, for it may state facts sufficient to entitle the plaintiff to a conveyance of some portion of the larger tract, although he may not be entitled to the very part claimed.

3. CONTRACTS--Legality--Breach of Trust--Officer of a Corporation. A contract made by a managing officer of a railroad company by which he is to receive a personal benefit in consideration of the location of a station at a particular place is void as against public policy.

4. CONTRACTS--Presumption--Trustee Acting for Himself or Beneficiary. In passing upon a demurrer to a petition in an action by a managing officer of a railroad company for the specific performance of a contract by which the owner of a tract of land agreed to convey a part of it to him in consideration of the location of a station thereon, the court will not presume, in the absence of averments to that effect that he made the contract and brought the suit in behalf of the company or that he had contracted with it for the right to hold the land himself.

Dale & Bierer, and Seward I. Field, for the appellant.

Samuel Griffin, D. B. Welty, and Robert Stone, for appellees M. J. Lane and Geraldine Lane.

OPINION

MASON, J.:

Ed L. Peckham brought an action against M. J. Lane and Geraldine Lane seeking to require the conveyance of an eighty-acre tract of land, relying upon a written contract executed by them to him, the specific performance of' which he asked. A demurrer to his petition was sustained and he appeals. The contract reads as follows:

"For and in consideration of the sum of one dollar, and other valuable consideration in hand paid us by Ed L. Peckham, of Blackwell, Okla., and the receipt whereof of said one dollar is hereby acknowledged, we do hereby bargain and sell, and hereafter convey unto the said Ed L. Peckham, the following-described real estate, situated in Barber county, state of Kansas, to wit:

"Eighty (80) acres out of the N. W. 1/4 of sec. 29, T. 33, R. 11 W., being further described as being 80 acres out of the N. W. part of said section and in addition to the above one hundred additional by twenty-six hundred feet of' right of way along the line of the Denver, Kansas & Gulf railway on, or adjoining the aforesaid described real estate.

"The purpose of the above sale is to enable the said Ed L. Peckham to locate and build a railroad station and town site on the aforesaid described real estate, and we hereby agree, on demand of Ed L. Peckham, to execute and deliver to him a warranty deed for said eighty (80) acres of ground for said town site and also to execute on demand to the Denver, Kansas & Gulf Railway Company the extra right of way required for said station grounds; same to be a piece of land one hundred (100) feet wide by twenty-six hundred (2600) feet long, adjoining the town-site land above described, same to be selected by the said Ed L. Peckham.

"It is understood as a part of the consideration for this instrument that said Ed L. Peckham will deed to us when said town site is platted one hundred (100) lots in said town site, same to be average lots throughout the said town site and apportioned on the basis that said one hundred (100) lots bear to balance of lots owned by Ed L. Peckham in said town site.

"M. J. LANE.

"MRS. GERALDINE LANE."

The first contention of the defendants is that the contract is unenforceable under the statute of frauds because it does not show what particular eighty acres they undertook to convey out of the quarter section, they being the owners of all of it excepting a strip occupied by the track and right of way of the railway company. The plaintiff maintains that the reference to the length of an additional right of way adjoining the proposed town site determines its location--that to admit of the fulfillment of this requirement the eighty-acre tract must be taken from the west side of the quarter section. Such, however, does not appear to be the case, as other locations could meet that condition equally well or better. The contract can not be regarded as an agreement to convey any specific tract. But we think its fair interpretation is that the Lanes undertook to convey some tract out of the quarter section, to contain eighty acres and to adjoin the railroad right of way, and that the necessary implication is that they were themselves to make the selection. The petition alleges that the plaintiff, with the consent of the defendants, platted the tract to which he makes claim into lots and blocks, forming a town site called "Gerlane," and that they selected from the plat the hundred lots to be reconveyed to them. Such selection, however, is not alleged to have been made in writing.

This view makes it necessary to determine whether under the statute of frauds an action will lie to compel the performance of a written contract for the sale of a tract of land to be selected out of a larger tract by the person sought to be charged, the selection not having been made in writing. The case of Alabama Mineral Land Co. v. Jackson, 121 Ala. 172, 25 So. 709, seems to answer this question in the negative. We think that case, however, proceeds upon a misconception. No reason is apparent why a person may not make a valid contract that he will sell to another one of several pieces of real estate of which he is the owner, to be selected by himself. When an agreement to that effect is written out and signed it is a complete contract, all of the terms of which are expressed in writing. The owner agrees that he will first make the selection and then make the conveyance. If he refuses to do either a court may compel him to do both. If he makes the selection and then refuses to convey the court may coerce the completion of the contract. Probably an oral selection would not be enough to convert the contract into one for the conveyance of the specific tract selected. If the buyer should claim, over the denial of the owner, that the latter had made a selection and upon that ground demand the conveyance of a particular tract, doubtless he could not support his contention except by written evidence, for to permit oral testimony to settle such a dispute would be against the purpose of the statute. But he can not avoid the obligation to which he has committed himself in writing merely by refusing to act at all. This seems so obvious that the citation of authorities is hardly necessary. The principle, however, is illustrated with more or less fullness in the following cases: Ellis v. Burden, 1 Ala. 458, 466; Carpenter and Another v. Lockhart, 1 Ind. 434; Washburn and another v. Fletcher, 42 Wis. 152; Fleishman v. Woods, 135 Cal. 256, 67 P. 276.

In the present case the consent of the defendants to the filing of the plat, and their designation of the hundred lots therein, show an acquiescence in the treatment of the tract claimed by the plaintiff as that selected by them to be conveyed. Moreover, the petition specifically alleges the selection of this tract by the defendants. But as the selection is not alleged to have been in writing, doubtless the petition fails to show a right to demand the conveyance of the particular tract claimed, unless upon the principle of part performance; but, so far as the statute of frauds is concerned, it states facts sufficient to entitle the plaintiff to a deed to an eighty-acre tract somewhere in the quarter section, and is therefore not subject to demurrer.

The defendants also urge that the contract is too indefinite for enforcement, because it does not specify the size of the hundred lots to be deeded back by the plaintiff nor the manner of their selection. The allegations that the lots have been selected by the defendants show a practical construction of the contract in this regard.

A further argument is made that the contract is wanting in mutuality, but as the plaintiff alleges full performance on his part this defense is not open to the defendants. ( Plaster Co. v. Blue Rapids Township, 77 Kan. 580, 96 P. 68; Zelleken v. Lynch, 80 Kan. 746, 104 P. 563.)

The final objection to the petition is that the real consideration for the agreement to convey the land was the location of a station at that point by Peckham, who was the president and general manager of the railway company, and therefore the contract contravened public policy because it contemplated a personal gain...