Samuelson v. Palmer
| Decision Date | 06 November 1915 |
| Docket Number | 19,697 |
| Parties | OTIS E. SAMUELSON, Appellant, v. WILLIAM PALMER, Appellee |
| Court | Kansas Supreme Court |
Decided July, 1915.
Appeal from Barber district court; PRESTON B. GILLETT, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. SALE--Land--Contract to Repurchase--Time Essence of Contract--Time Expired--Specific Performance Denied. The defendant sold a farm to the plaintiff and as an inducement to purchase made the following written promise:
Extensions were duly endorsed on this instrument each year for four years, the last one expiring February 26, 1913: Held, that parol testimony was inadmissible to prove that an advance of $ 7.50 per acre per annum was intended as consideration for such extensions.
2. SAME--Contract to Repurchase--An Optional Contract. The foregoing written instrument was an optional agreement to purchase; and to bind the maker, the owner should have accepted the proposition before its expiration, and an acceptance "thirty days or six weeks" afterwards was too late.
Samuel Griffin, of Medicine Lodge, for the appellant.
Seward I. Field, J. N. Tincher, both of Medicine Lodge, and A. L. Noble, of Winfield, for the appellee.
The plaintiff, Otis E. Samuelson, bought a farm of 184 acres in Lyon county from the defendant, William Palmer, on February 26, 1909. The price was $ 55 per acre. As an inducement to Samuelson to purchase the farm, Palmer executed the following written undertaking:
(Signed) WILLIAM PALMER.
Several days prior to the first expiration of this agreement Samuelson notified Palmer that he would turn over the land and expected him to pay $ 62.50 per acre, or $ 7.50 in advance of what he gave for it. On the day of the expiration Samuelson came to Medicine Lodge and offered to turn over the deed to this farm upon the payment to him of the agreed price. Palmer said that money was scarce, that he did not have the money, and asked for an extension of time, which was granted him by the appellant, and the notation was made as shown on the original written undertaking.
On or about May 26, 1910, Samuelson came to see Palmer, the appellee, and demanded the amount that was due him according to the agreement; that he had the deed and was willing to make it out to him. The appellee again said that he did not have the money, and that the best he could do would be to have this agreement extended until May 26, 1911, to which the appellant agreed.
Again, on February 26, 1911, Samuelson asked Palmer to carry out his agreement, but he refused to do so. Appellant was ready and willing at the time to turn over the deed for the consideration of the purchase price, the interest and expenses, and the advance of $ 7.50 per acre. This is shown by the last endorsement, but as a similar arrangement was made on February 26, 1912, and the space on the paper for endorsements was exhausted, the last endorsement was altered by mutual consent, so as to read that it expired February 26, 1913. At the expiration of the last extension of time (or afterwards) the defendant Palmer told the plaintiff that he could not comply with the terms of his written undertaking, and Samuelson brought this action, setting up the facts and asking for judgment for $ 5520 as damages for breach of contract.
The plaintiff offered to prove that each extension was made in consideration of an oral promise on the part of Palmer to pay an additional sum of $ 7.50 per acre; that is, an advance of $ 7.50 per annum per acre. This advance of $ 7.50 per acre per annum would be $ 30 per acre in four years, and it is on this theory of $ 30 per acre for one hundred and eighty-four acres that the aggregate damages of $ 5520 are claimed.
Defendant's answer was a general denial, and at the trial a demurrer to plaintiff's evidence was sustained. On this ruling and the exclusion of plaintiff's proffered testimony that the several extensions were made in consideration of defendant's oral promise to pay an advance of $ 7.50 per acre per annum for each of these extensions, this appeal is taken.
1. The writing and its endorsements are not ambiguous. The endorsements all refer to "this agreement." What agreement? Clearly the original agreement. The endorsements merely extend the time when the defendant was to take the land at the advance of $ 7.50 per acre over the original purchase price. The admission of oral testimony to prove that an advance of $ 7.50 per annum for each extension would disturb all settled rules of evidence touching the integrity of written instruments. Certainly the exclusion of such testimony was not error.
Counsel cite standard authorities to show that written contracts duly executed import a consideration, and that parol testimony is competent to show what the consideration actually was. Very true. And in this case, it was competent to show the consideration for the instrument in controversy. That consideration was the inducement to Samuelson to buy Palmer's farm. But the obligation of Palmer, for that inducement and as the consideration, was Palmer's written offer to...
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