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tendered his promissory notes for said deferred payments in all things as agreed upon.
“(4) All the conditions of said agreement were kept and performed by said Becker, and he became and was entitled to a performance thereof on the part of said defendant, had such agreement, or some note or memorandum thereof, been made in writing and duly signed.
“(5) Some evidence was offered tending to show that the actual cash value of said stock, at the time and place agreed upon for said transfer, was one hundred and fifty dollars per share; but the court being of the opinion that said agreement is void by reason of its resting in parol, makes no findings as to the value of such stock.
*As conclusions of law from such facts the court finds that said parol agreement was void, because of the statute of frauds, and that no action can be sustained thereon.”
Mason & Meigs and A. W. Benson, for plaintiff in error.
A. Franklin, for defendant in error.
VALENTINE, J. This was an action brought by E. H. Becker against Jasper P. Mason to recover damages for the failure on the part of Mason to perform an alleged eontract for the exchange of certain bank stock on the part of Mason for certain real estate and promissory notes on the part of Becker. The case was tried by the court without a jury, and the court, after making certain findings and conclusions, rendered judgment in favor of the defendant and against the plaintiff for costs; and the plaintiff
, as plaintiff in error, now brings the case to this court for review.
The court below decided the case wholly upon the ground that the contract was void under the sixth section of the statutes relating to frauds and perjuries. Comp. Laws 1879, c. 43, § 6. This section, so far as it has any application to the present case, reads as follows: "Sec. 6. No action shall be brought whereby to charge a party
upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them,
unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by bim or her lawfully authorized."
In the present case the contract between the parties was wholly in parol, and it was in substance as follows: Mason was to transfer to Becker 65 shares of the capital stock of the People's National Bank of Ottawa, Kansas, wbich shares were of the par value of $100 each, but were valued by the parties at $110 each, aggregating $7,150, and Becker was to convey or cause to be conveyed to Mason certain real estate, which was at the time the homestead of Becker, and the title
thereto was in Becker's wife; and also agreed to give Mason his four promissory notes, payable at different times, from about five months up to about three years. The real estate was valued at $2,500, and the notes, in the aggregate, were to be for the sum of $4,650. No note or memorandum of this contract, or of any part thereof, was ever made or reduced to writing or signed by either of the parties. No question was raised in the court below respecting the validity or invalidity of this contract under the homestead exemption laws, and the court below did not decide any such question, but simply held that under the statute relating to frauds and perjuries, the action could not be maintained; and this it held for the reason that the con. tract was in part concerning real estate, and that no note or memorandum thereof was ever made or signed by either of the parties. It will be noticed that the statute above quoted includes all contracts "for the sale of lands,” all contracts for “any interest” therein, and all contracts "concerning” lands, and it is the contract upon which the action is to be brought "to charge a party," and not something else; and it is the contract, or some note or memorandum thereof, upon which “the party [is] to be charged," and not something else. It is not the sale or the purchase or the transfer of a release, or some other special thing affecting or concerning" the real estate upon which the action is to be brought, nor is it any one of these special things upon which “the party [is] to be charged.” And the contract necessa :ily embraces two parties, each contracting with reference to the real gs
99tate, either of whom may be charged upon the contract, if the contract, or some note or memorandum thereof, is reduced to writing and signed by such party; but neither of whom can be charged unless the contract, or some note or memorandum thereof, is reduced to writing and signed by “the party to be charged." The contract, note, or memorandum must in all cases be in writing; it must in all cases be signed by one of the parties; and it must in all cases be signed by the party who is eventually to be charged upon it. And this "party" may be the owner of the real estate, or any other person contracting with reference thereto. In the present case neither of the parties
. owned the real estate with reference to which they made the contract. The statute provides in substance that no action shall be brought "to charge a party" upon the contract, unless "the party to be charged" has executed in writing some note or memorandum of the contract.
It will be seen that the statute does not attempt to make parol contracts concerning real estate void, but simply provides in substance that no party shall be “charged" upon them, unless the contract, or some note or memorandum thereof, has been reduced to writing “and signed by the party to be charged." The statute merely relates to the proof of the contract, providing in substance that the contract must be proved, if proved at all, by some written note of memorandum of the contract, signed by the party to be charged, which party is generally the defendant in the action. The object of the statute seems to be to require that the proof concerning contracts relating to real estate shall be in writing, and signed by the party against whom the proof is offered. The object of the statute is to prevent any person from being charged by parol evidence upon an alleged parol contract concerning real estate. This view of the case, we think, is sustained by all or nearly all the authorities. 1 Browne, St. Frauds, $ 134; 1 Greenl. Ev. § 268; 2 Kent, Comm. *510; Crafton v. Cummings, 99 U. S. 100; Newby v. Rogers, 40 Ind. 9; Justice v. Lang, 42 N. Y. 494; Old Colony R. Corp. v. Evans, 72 Mass. (6 Gray,) 25; Laythoarp v. Bryant, 2 Bing. N. C. 735.
The case of Cadwalader v. App, 81 Pa. St. 194, is not in conflict with the foregoing view. That case was decided under a statute which was passed solely for the protection of land-owners; and it was decided upon a statute similar to section 5 of the statute of Kansas relating to frauds and perjuries, which requires that the instrument shall be signed only by the land owner or his agent. Besides, in that case, the contract was reduced to writing and signed by both the parties to the instrument, and therefore that case is wholly unlike the present case, where no note or memorandum was signed by either of the parties, nor was even reduced to writing. We know of no decision in conflict with the views we have enunciated in this
In the case of Worrall v. Munn, 5 N. Y. 229, the party to be charged did sign the written instrument upon which the suit was brought, and of course the court held that he was liable.
That case is like all other cases where the owner of the real estate is the party to be charged. In the present case, neither of the parties owned the real estate concerning which the contract was made.
The next question to be considered is whether the contract between Becker and Mason may be upheld and sustained as against Mason in any particular. The contract, as before stated, was not wholly a contract concerning real estate, but it was also a contract concerning bank stock and promissory notes. If the contract had been solely a contract concerning bank stock and promissory notes, it would be binding upon the parties and could be proved by parol evidence; but as the contract was partially concerning real estate, and as no note or memorandum was made thereof or signed by either of the parties, must the entire contract fail? It would seem from the authorities that it must. Browne, St. Frauds, $ 140 et seq.; Sugd. Vend. c. 4, $ 3, par. 10, p. *128; 1 Pars. Cont. 455, note n; 3 Pars. Cont. 17, note g; Fuller v. Reed, 38 Cal. 99, 109; Atwater v. Hough, 29 Conn. 508, 515; Baldwin v. Palmer, 10 N. Y. 232, 235, and cases there cited. It must be remembered that this contract was entire, and was also wholly executory. The whole of the consideration on one side was to be given for the whole of the consideration on the other side, and no part or portion of the contract on either side has ever been performed. Becker, within proper time, offered to perform the contract on his side, but Mason refused performance on bis side, or to accept performance on the side of Becker. The consideration on the part of Becker was the real estate and the promissory notes; and these were all to be given in their entirety and in bulk for the consideration on the other side; and the consideration on the other side was the bank stock, and this was to be given in its entirety and in bulk for the consideration to be given on the part of Becker. If the contract had been severable, one portion of it might be held good and the other portion bad; or if the contract had been partially performed, then it might be held to be partially good or entirely good, or at least the party performing a portion of the contract would have some remedy for his loss; but, as we have before stated, the present contract was an entire contract, and not severable, and it was purely executory, and no part of the same has ever been performed. Hence, we think, the infirmity with respect to a portion of the contract vitiates and destroys the force and efficacy of the whole of the contract. This, we think, follows from the authorities heretofore cited, and from others which might be cited.
The judgment of the court below will be affirmed. (All the justices concurring.)
MARTIN and another v. MARTIN.
Filed November 8, 1883.
Where M., owning a homestead, conveyed other farming land to his son, L., roserving to himself and family to use as a pasture for stock, on an average of 10 head per year, 80 acres thereof, so long as himself and family owned the land they occupied at the date of such conveyance, and at such time M.'s family consisted, nesides himself, of his wife and his daughter, O., and thereafter his wife died, and he deeded the homestead to his daughter, O., reserving, however, the premises as a home, and for his support during his natural life, and after the date of such converance his daughter, O., had charge of the home, and the family consisted of M., his daughter, O., and his sister's child, held, that with his consent the daughter, 0., has the right to the pasturage on the land reserved in the conveyance to his
Error from Miami county.
Action by Olivia A Martin against Leroy W. and Rebecca A. Martin, to recover damages alleged to have been sustained by reason of being prevented from pasturing cattle upon the S. t of the S. E. of section 18, township 16, range 25, in Miami county, in this state. On the thirty-first day of October 1868, John Martin (the father of Leroy W. Martin and Olivia A. Martin) and wife conveyed by warranty deed to Leroy W. Martin, among other lands, the real estate above described. The deed contained the following reservation : “Provided, that the said John Martin, of the first part, reserves the
right to himself and family to use as a pasture for stock, on an average of ten head per year, the last-described eighty acres of land, so long as himself and family own the land that he now occupies." At the time the deed was executed, John Martin's homestead consisted of the S. E. of the S. E. , and the S. of the N. of the S. E. }, of section 19, township 16, range 25, in said Miami county. On August 7, 1872, Leroy W. Martin.conveyed the said S. of the S. E. I of section 18, township 16, range 25, to his wife, Rebecca A. Martin. Prior to May 11, 1882, the wife of John Martin died, and on that day he conveyed by deed to his daughter, Olivia A. Martin, the homestead, which deed contained the following reservation : "John Martin, the grantor, herein reserves to himself a home and support from said premises conveyed, for and during his natural life. With this only exception, the fee-simple of the land is hereby conveyed to the said Olivia A. Martin, his daughter, with the appurtenances, and all estate, title, and interest of the said party of the first part therein."
Trial had at the February term for 1883, before the court, with a jury. The jury found a verdiet for the plaintiff and assessed ber damages at $15, and also returned the following special findings : “Did John Martin reserve the right to pasture 10 head of cattle upon the south half of the south-east quarter of section 18, township 16, range 25, Miami county, Kansas, when he deeded the said land to Leroy Martin? "Answer. “To himself and family.” “If you answer 'yes' to the first question, then has he ever conveyed, sold, or assigned that right of pasturing to any other person or persons ?" A. "No." “With whom was John Martin living at the time of the commencement of this action?" A. "On the old homestead, with Olivia A. Martin." "How many members comprised the family of Olivia A. Martin, the plaintiff, as shown by the testimony in this case ?” A. "Jobn Martin, Olivia Ann Martin, and her sister's child." "Has John Martin lived with Olivia Martin ever since he deeded the home place to her ? If not, how long has he lived with her ?” A. “Yes.” “Has Leroy Martin ever refused to allow John Martin to pasture his cattle upon the land in controversy?" A. "No." "Did Leroy Martin
ell Olivia Martin that she could not pastare cattle upon the land in controversy?" A. "He did, through her father." "Has Olivia Martin ever asked permission of the defendants, or either of them, to pasture cattle upon the land in controversy?" A. "No." "Does the land in controversy adjoin the land conveyed by John Martin to Olivia Martin ?" A. "No." "At the time Jolin Martin conveyed the land in controversy to Leroy Martin, was be the head of a family, and if so, of whom did it consist ?" A. "Yes; himself, wife, and daughter, Olivia, and perhaps others ?”
The defendants filed a motion for a new trial upon the grounds that the court erred in instructing the jury; for errors of law occurring on the trial; that the verdict was not sustained by the evidence; and for other reasons. This motion was overruled by the court and