Long v. Duncan

10 Kan. 294

• Court: Supreme Court of Kansas
• Decided: July 15, 1872
• Status: Published

Opinion

. The opinion of the court was delivered by

Kingman, C. J.:

This was an ordinary action for the recovery of land. The defense was an equitable one, alleging that the plaintiff purchased the land for the defendant, with money that plaintiff had loaned to defendant. The issues were submitted to a jury, and in the course of the trial various questions were raised which are brought to this court for review. The first error alleged is the refusal of the court to give the third instruction asked by the plaintiff, which is as follows:

“3d.-That the above points should be sustained by the party claiming a specific performance, not only by a preponderance of testimony, but should be made clear beyond doubt.”

To understand this instruction the preceding one to which it refers is quoted: ,

“ 2d. — That to take a case of parol contract for the purchase of land out of the operation of the statute of frauds, under the plea of part performance, the alleged contract should be-first shown to be clear, definite, and unequivocal in all its terms; and second, the acts of part performance should clearly appear to have been done solely in pursuance of the contract alleged, and solely with a view to such contract being performed.”

It is plain that this instruction, which was given, lays down the true rule for the determination of the issue made up. In many of the decisions equivalent and perhaps stronger expressions are used, as in Phillips v. Thompson, 1 Johns. Ch., 149, where it is said that clear oand satisfactory proof of the parol contract must be presented. In Parkhurst v. Vancortland, id., 284, it is said that the terms of the contract must distinctly appear or be made out to the satisfaction of • the court. In Blanchard v. McDougal, 6 Wis., 167, the-court use this expression: “If the material fact, viz., the-making of the contract, or its essential terms, are left in doubt,, a court cannot decree specific performance.” To the same-effect is Knoll v. Harvey, 19 Wis., 99. These authorities would justify the refused instruction so far as is applied to the making of the contract, but would not justify it in making the proof of the acts done under the contract necessary to be proven beyond doubt; and this the instruction required. For this reason the court correctly refused to give it.

It is further alleged that the court erred in refusing to grant a new trial because, first, the verdict is not sustained by sufficient evidence. Under the well-established rules of this court we cannot say against the decision of the court below that the evidence was not sufficient to authorize the verdict. Another ground was the neglect of the jury to make answers to certain special questions submitted to them by the court at the instance of the plaintiff. No effort was made by the plaintiff to have this omission corrected. This court cannot say that if an attempt had' been made it would not have been successful. The awkward condition in which the plaintiff found himself was the result of his own action, and he surely was bound to make some effort to correct it other than to put the court and parties to the trouble of a new trial. The failure to produce the tender in court till the day after it was ordered by the court cannot be taken advantage of in a motion for a new trial. These are all the errors complained of, and in none of them do we find sufficient cause to reverse the judgment. Judgment affirmed.

All the Justices concurring.