Benfield v. Croson

Citations

• 90 Kan. 661
• 136 P. 262
• 1913 Kan. LEXIS 284

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Exchange — Merchandise for Land — “Forfeit” Money Deposited — Default—“Forfeiture” Not Enforceable. - A stock of merchandise to be valued at the cost price of each article at wholesale was traded for a tract of land to which a certain value was assigned. The contract provided that the merchandise should be invoiced and if it amounted to less than the price placed upon the land the vendor should pay the difference in cash. If it amounted to more the vendee should pay the difference in cash. The contract further provided that each party should stake as a forfeit the sum of $500, to be placed in the hands of a third person, and should either one fail to keep all and singular the terms of the agreement the deposit should be forfeited to the other. Held, the language of the contract providing for a forfeiture and not for stipulated damages should control in the absence of circumstances indicating a different intention;' that actual damages resulting from a breach of the contract were readily provable without entering into the realm of speculation and conjecture; that the amount of the stake was fixed without reference to compensation for loss in case of a breach; and that upon default by one party the other could not enforce the forfeit. .</p> <p>2. -Pleading — Amendment Changing Cause of Action — Judicial Discretion. In an action by the vendee to recover the vendor’s forfeit from the stakeholder the vendor was interpleaded in a county other than that of his residence. After the petition had been once amended and after a great lapse of time the action came on for trial and a demurrer was sustained to the plaintiff’s evidence. The plaintiff then asked leave to amend by changing the cause of action- to one for actual damages for breach of contract. Held, it was not an abuse of discretion to deny the request.</p> <p>3. Judgment — Not Reversed to Allow Nominal Damages. A judgment will not be reversed and the cause remanded merely for the p