White v. Farnham

• Decision Date: 10 December 1892
• Citation: 31 P. 606,49 Kan. 777
• Court: Kansas Supreme Court
• Parties: HODGES & WHITE v. GEORGE A. FARNHAM

31 P. 606

49 Kan. 777

HODGES & WHITE v. GEORGE A. FARNHAM

Supreme Court of Kansas

December 10, 1892

Error from Miami District Court.

THIS case is stated in the opinion.

Judgment affirmed.

Jno. C Sheridan, for plaintiffs in error:

The rulings and instructions of the court show that it disposed of this case solely upon the belief that it was parallel with and the same kind of case as Thimes v. Stumpff, 33 Kan. 53. But an examination of that case discloses the error in making this case abide the same result. In that case it was purely and solely a contract by the husband alone to convey the homestead, while the contract in this case is for the purchase of a drug store, and incidentally provides that, as part payment for it, he may convey to plaintiff at a given price a certain tract of land, which afterwards proved to be his homestead. In that case, the finding was that the wife had not consented to the matter. But in this case Farnham's wife had been determined with him to leave the farm, to trade or sell it and quit farming; and, knowing all about the trade, she executed and acknowledged the deed, and consented to her husband taking it to Paola to be delivered to the plaintiffs. In the case cited, the court declined to decide the point as to whether the contract of the husband to obtain his wife's consent to conveyance of the homestead is void. In this case, the wife performed every act necessary on her part to enable the husband to apply this land in payment for the drug store. The whole force of that action and the decision of it was placed upon the contract, the performance of which had never been tendered by either party. In this case the contract had been fully performed, except as to payment of the price of the drug store, and every act of Farnham's wife necessary to enable him to apply the land on such payment had been performed.

This is not a suit upon an unexecuted contract. Nor is it such a suit as to any branch or point involved. There is no room for any misunderstanding of the facts involved in or the nature of the suit. No specific performance of the contract is asked. If the contract were stricken out of the pleadings and proof what could prevent the plaintiff's recovery of the balance, the amount of the inventory, and 10 per cent. added which was agreed upon throughout as the work progressed till completed? The items of time and expense in invoicing and examining the land would follow the contract, but all the other proof as to surrender of lease, location, removal, announcement of sale and profits of the store bears only upon the value of the store at the time of its return, and the difference between that amount and the amount agreed upon, as shown by the inventory, with the agreed 10 per cent. added, would be the balance due the plaintiffs. In any event, it would not be less than the difference between the market value of the drug store at the time of delivery and the market value of it at the time of surrender, proof of both of which was introduced by the plaintiffs and not contradicted.

Stephenson & Hogueland, for defendant in error:

We think the facts bring this case clearly within the rule laid down in the case of Thimes v. Stumpff, 33 Kan. 53.

There was no error in the refusal of the court to allow plaintiffs to amend their petition. There was no issue raised by defendant upon the trial that was not pleaded in his answer, and it was, therefore, no abuse of discretion by the court below to refuse to allow an amendment of the petition under these circumstances.

JOHNSTON, J. All the Justices concurring.

OPINI ...