Stramel v. Hawes

• Decision Date: 08 January 1916
• Docket Number: 19,861
• Citation: 154 P. 232,97 Kan. 120
• Parties: ANTON STRAMEL, Appellant, v. A. B. HAWES, Appellee
• Court: Kansas Supreme Court

154 P. 232

97 Kan. 120

ANTON STRAMEL, Appellant, v. A. B. HAWES, Appellee

No. 19,861

Supreme Court of Kansas

January 8, 1916

Decided, January, 1916.

Appeal from Edwards district court; ABERT S. FOULKS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACT--Action for Breach--Ratification of Contract. Where a party to a contract elects to sue upon it for damages resulting from an alleged breach of its terms by the defendant, he thereby ratifies it as a valid contract, binding alike upon himself and the defendant.

2. SPECIFIC PERFORMANCE--Performance Impossible--Damages May be Recovered. Although specific performance is still an equitable remedy the granting of which rests in the discretion of the court, the code has abrogated the rule which formerly obtained, that a judgment for damages will not be awarded where specific performance is found impossible unless the court in its discretion and upon a consideration of the equities concludes that it is just and equitable.

3. SAME--Certain Rules Abrogated by Code. The rule which formerly obtained, that where a party knows at the time he brings suit for specific performance that the contract can not be specifically performed or decreed he will not be allowed to recover compensation in the way of damages, has also been abrogated by the code.

4. ACTION -- Specific Performance -- Cross-petition Alleging Plaintiff's Breach--Damages Recoverable. In an action in which plaintiff sues to recover damages for the breach by defendant of a contract to exchange real estate, the defendant may set up a cross-petition alleging that plaintiff breached the contract and ask for specific performance with a prayer in the alternative for damages, notwithstanding defendant is aware of the fact that plaintiff has put it beyond his power to perform.

5. SPECIFIC PERFORMANCE--Action to Set Aside Judgment--Equitable Considerations Unavailable. Where plaintiff brings an action to recover damages for the defendant's breach of a contract to exchange real estate and the court finds that it was the plaintiff and not the defendant who breached the contract, a judgment in defendant's favor on his cross-petition for damages will not be set aside on considerations of equity or because it appears that plaintiff made a bad bargain.

T. S. Haun, of Kinsley, William T. Jamison, J. G. Hutchison, and M. J. Ostergard, all of Kansas City, Mo., for the appellant.

A. C. Dyer, A. L. Moffat, both of Kinsley, and F. Dumont Smith, of Hutchinson, for the appellee.

OPINION

PORTER, J.

In some respects this is a remarkable case. The plaintiff sued to recover $ 500 damages for the alleged breach by the defendant of a written contract for an exchange of real estate, claiming that he had paid that amount as commissions to one Joe Dome, his agent in procuring the contract. The defendant answered with a cross-petition admitting the validity of the contract, but claiming that plaintiff had breached it; that defendant was and continued ready, able and willing to comply with his part of it and to exchange properties. He asked a decree against plaintiff for specific performance, with a prayer in the alternative for damages in case plaintiff had placed it beyond his power to perform. The plaintiff then was willing to drop the matter and filed his motion to dismiss the action, alleging that he had never authorized it to be brought. The court tried out that issue first and found against the plaintiff, who then filed a reply, and the cause went to trial before the court. Separate findings of the facts and conclusions of law were made at the request of plaintiff, and among these is the finding that Dome had no authority to sign the contract as agent for plaintiff; that the contract never bound the plaintiff to do anything until he ratified it by bringing his action upon it to recover damages for its breach. The court also found that it was the plaintiff and not the defendant who breached the contract, and that defendant was entitled to recover damages against plaintiff in the sum of $ 4520, and judgment was rendered accordingly. This left the plaintiff in a serious predicament and it is not surprising that he appealed. At the time the judgment was rendered the court added a postscript statement which became a part of the record, and which reads:

"The trial court feels that the judgment in this case is inequitable; that defendant could not have recovered in this case if plaintiff had not elected to hold said contract good and sue thereon; that the question of equity was not considered by the court in rendering judgment in this case but the judgment is based solely upon the court's idea that plaintiff in filing the suit in this case has ratified said contract and is bound by the terms thereof. This statement is made in order that the Supreme Court may know the theory upon which judgment was rendered in this case."

By the contract, which is dated November 18, 1912, plaintiff agreed to trade three sections of land in Nebraska for an apartment house in Kansas City, Kan., belonging to defendant. The Nebraska land was represented as subject to mortgages amounting to $ 7000, due May 17, 1916. As a matter of fact, $ 1000 of the incumbrance was past due and the balance matured a year later. The court found that the apartment house was represented to be subject to two mortgages aggregating $ 5000, due in five years. The contract is silent as to the date when these mortgages were due, and the court's finding is upon evidence of oral statements made to plaintiff by defendant's agent previous to the execution of the contract. The amount of mortgages on the Kansas City property turned out to be $ 5200, but before plaintiff declared his intention to refuse to make the trade, the defendant took up the $ 200 incumbrance and the release was noted on his abstract which was returned to plaintiff for further examination. It appears also that a suit to foreclose one of the mortgages on the apartment house was pending in the district court of Wyandotte county, but defendant notified the plaintiff that arrangements had been made to dismiss the foreclosure and to extend the mortgage, and that he was waiting to learn whether the plaintiff would arrange to procure an extension of the mortgages on the Nebraska land. The correspondence between the parties and their attorneys concerning requirements in respect to the abstracts continued for several weeks after the expiration of the thirty days agreed upon for the completion of the trade. The court found that the plaintiff failed to return defendant's abstract after it was sent to him the last time, or to answer inquiries respecting the defendant's requirements as to plaintiff's abstract; and that on April 14, 1913, plaintiff notified defendant that he refused to complete the trade, assigning as his reasons therefor that he had never made a valid contract, that defendant had failed to comply with his part of it, and that there were fraudulent representations made to him by defendant concerning the property and the incumbrances thereon.

The particular matters which doubtless impelled the trial court to conclude that the judgment is inequitable, are the facts stated in finding No. 13, namely, that at the time the contract was made plaintiff's Nebraska land was worth $ 11,520, subject to $ 7000 incumbrances, while...