Akins v. Holmes

Citations

• 89 Kan. 812
• 133 P. 849
• 1913 Kan. LEXIS 130

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Specific Performance — Fraud, Pleaded — Rescission — Jury Trial — Tender of Deed. The contract between the plaintiffs and the defendants provided for an exchange of property, that belonging to the plaintiffs consisting of real estate in Missouri, and that belonging to the defendants consisting of real estate and personal property in Kansas. The personal property was delivered to the plaintiffs and the deed to the Kansas land was placed in escrow until the deed to the Missouri land should reach the depositary, when both we’10 to be delivered. The defendants then undertook to rescind. They took possession of the personal property, demanded and received their deed of the depositary, and when the plaintiffs’ deed subsequently reached the depositary it wa> mediately returned to them. . The plaintiffs brought suit for the specific performance of the unconsummated contract, and with their pleading tendered a deed of the Missouri land. defendants asked for rescission, on the ground of fraud, and for the cancellation' of the contract. Held: (a) The ulain-tiffs were not entitled to a jury trial. (6) Tender of a d~~d of the Missouri land by the defendants to the plaintiffs was not required before the defendants answered praying foi rescission, and such a deed was not necessary in order to restore the plaintiffs to the position which they occupied before the contract was made.</p> <p>2. Two Actions — Specific Performance — Replevin—Based on Same Contract — No Jury Trial. The plaintiffs also brought an independent action of replevin for the personal property, in which a jury was called, but it was consolidated for trial with the specific-performance case. The jury returned findings of fact and a general verdict for the plaintiffs. The court made findings of fact in favor of -the defendants, set aside the findings and verdict of the jury, and rendered judgment for the defendants. Held, the consolidation of the two actions for trial w