Thimes v. Stumpff

• Decision Date: 07 January 1885
• Citation: 33 Kan. 53,5 P. 431
• Parties: JOSEPH THIMES v. M. L. STUMPFF
• Court: Kansas Supreme Court

5 P. 431

33 Kan. 53

JOSEPH THIMES v. M. L. STUMPFF

Supreme Court of Kansas

January 7, 1885

Error from Coffey District Court.

ACTION brought by Thimes against Stumpff to recover upon a promissory note for $ 200, executed by the defendant, May 23 1882, and payable to the order of the plaintiff, on July 15 1882, with interest at 8 per cent. per annum after maturity. The defendant set up as a defense, that the note was given without consideration, alleging that the note was given as an advance payment upon the following-described real estate situate in Coffey county, Kansas, to wit: The southeast quarter of the southeast quarter of section 14, and all of the east half of the northeast quarter of section 23 lying north of the Neosho river, all in township 20, of range 13 containing 80 acres, more or less, which was owned by plaintiff, and which he, by a pretended contract in writing, dated May 23, 1882, signed by himself only, agreed to sell and convey to the defendant by a good and sufficient warranty deed; that the plaintiff was a married man, a resident of Kansas, and the head of a family, and with his family occupied the titan above described, as a homestead; that plaintiff's wife did not then or at any other time sign the pretended contract or consent to the sale of the homestead, made by plaintiff to defendant; that no conveyance of the land was ever made by plaintiff and his wife to defendant, and that the only consideration for the promissory note as well as for a cash payment of $ 40, made at the time the note was given, was said pretended contract, which, not being signed by his with nor made with her consent, was wholly worthless and void; and averring that he is entitled to recover the sum of $ 40, paid by him as aforesaid upon the land, and praying a judgment against the plaintiff therefor.

The following is a copy of the contract referred to, and which was made a part of the defendant's answer:

"HARTFORD, KANSAS.

"This is to certify that I have this 23d day of May, 1882, bargained and sold to M. L. Stumpff the following-described land, situated in Coffey county and state of Kansas, to wit: The southeast fourth of the southeast quarter of section fourteen, and all of the east half of northeast fourth of section twenty-three north of the Neosho river, being all in township twenty, of range thirteen, containing eighty acres more or less, for the consideration of twenty-six hundred dollars, forty dollars of which I hereby acknowledge in cash, and the receipt of one note for two hundred dollars, due July 15, 1882; and upon the full payment of the above twenty-six hundred dollars, I further agree, between the first day of September and the first day of October, 1882, to make and deliver to said M. L. Stumpff, his heirs or assigns, a good and sufficient warranty deed to the above-described land, with the appurtenances thereto, except what fence posts are made and piled upon said premises, and the growing corn crop, which is to be taken off of said premises by the 25th of December, 1882, reserving also the use of all the vegetables grown on said premises necessary for the use of his own family until possession is given of said premises to said M. L. Stumpff.

(Signed) J. THIMES.

"Executed in presence of W. J. Combs, justice of the peace."

At the January Term, 1884, the cause was tried by the court without a jury, and the following findings of fact and conclusions of law were made by the court:

"1. On May 23d, 1882, and prior thereto, the plaintiff was a married man, resident of the state of Kansas, the head of a family, and owned and with his family occupied, as a home, the southeast quarter of the southeast quarter of section 14, and all the east half of the northeast quarter of section 23 north of the Neosho river, all of which lauds were in township 20, range 13, in Coffey county, Kansas, and which formed one contiguous tract of land less than 160 acres, and not in the corporate limits of a town or city; that at and prior to said 23d day of May, said plaintiff and his family had no other home or residence, and owned no other lands in that vicinity.

"2. On May 23d, 1882, plaintiff made and entered into a written contract with the defendant to the effect that the plaintiff would, between September 1st and October 1st, following, convey said premises to the defendant upon payment of $ 2,600; at the time of making said contract defendant paid plaintiff $ 40, cash, and gave the note sued on for $ 200, said $ 240 being a part of the $ 2,600.

"3. The defendant failed to obtain means that he expected, and the matter was by consent deferred from time to time until October 8th, 1882, when defendant informed plaintiff that he was ready to comply with the contract, and would have the money at Hartford, Kansas, on the next day. The plaintiff accordingly took his wife and went to Hartford to receive the money and to execute the deed. Defendant failed to get the necessary money as he expected, and nothing was done, and since that time nothing has been done by either toward the completion of said contract. The defendant has failed to pay the money agreed upon, and the plaintiff has never executed and delivered said deed, or offered to do so, except as aforesaid.

"4. The only consideration ever received by the defendant for said $ 40, cash, and for said note sued upon, was said written contract aforesaid. Said contract was signed by said plaintiff alone. Neither the defendant nor plaintiff's wife signed it, and it does not appear that plaintiff's wife ever consented thereto. Previous to and at the time of the execution of the written contract, defendant lived and boarded in plaintiff's family. Afterward, and before the trip to Hartford, matters concerning the compliance of the terms of said contract were talked over by plaintiff and defendant in the presence and hearing of plaintiff's wife, but it does not appear that she either objected or consented thereto, except as aforesaid. At the time the written contract was executed, there was some talk as to the propriety of drawing a duplicate for plaintiff to hold, but it was finally agreed that it was unnecessary, inasmuch as the $ 40, cash, and the $ 200, had been paid in advance by the defendant."

The court found as a conclusion of law, that the defendant ought to recover $ 40 and costs. Thereupon judgment was rendered in favor of the defendant for the sum of $ 40, together with his costs. The plaintiff brings the case to this court for review, upon the findings of fact, conclusion of law, and the judgment found and rendered by the court below.

Silas Fearl, and C. N. Sterry, for plaintiff in error.

Redmond & Junkins, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The findings of fact made by the court below are accepted by plaintiff, without complaint. They show that the promissory note sued on in this action, together with $ 40 in money, was delivered and paid by the defendant as a partial payment upon an eighty-acre farm which the plaintiff attempted to sell and convey to the defendant. The plaintiff was a married man, a resident of the state, the head of a family, and with his wife and family occupied the land as a homestead. The written instrument or paper by which the plaintiff agreed to sell the homestead for the sum of $ 2,600, and wherein he acknowledged as a...