Allen v. Gheer

Citations

• 98 Kan. 228
• 158 P. 17
• 1916 Kan. LEXIS 53

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale OR Real Estate — Default of Purchaser — Waiver—Pleadings. . . The rule that a waiver of a right of forfeiture must be pleaded before . it can be considered does not apply when evidence tending to show the waiver is introduced without objection, and when the testimony of the defendant who is insisting on the forfeiture tends to show a waiver, and when his request for the submission of special questions on the subject of waiver is allowed.</p> <p>2. Same — Repudiation of Contract — Instructions. When a vendor of real estate, under a contract of sale and to convey title when payments ‘are completed, by his course of conduct has waived the default of the vendee and the vendee’s assignee, and wrongfully recovers possession of the property, and the vendee’s assignee commences an action for damages thereon, it is not error for the court to instruct the jury that “both parties are seeking to treat the contract in question as repudiated.”</p> <p>3. Same — Repudiation of Real-estate Contract — Measure of Damages, Where a vendor of real estate receives a payment on the purchase pries and afterwards repudiates the contract and wrongfully recovers possession of the property, and the vendee elects to treat the contract as repudiated, the measure of damages, where no other elements of damage are established, is correctly defined to be the amount paid on the purchase price less the rental value of the property while in possession of the vendee.</p>