Campbell v. Lodge No. 99, Ancient Free & Accepted Masons

Citations

• 76 Kan. 400
• 92 P. 53
• 1907 Kan. LEXIS 276

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Breach of Warranty — Estoppel — Immaterial Condition. A party to a contract will not be estopped from setting up a breach of-warranty by his failure to_ comply with an immaterial condition, although it is expressed in the contract to be a condition precedent.</p> <p>2. Sales — Conditional Warranty — Purchaser in Default. Where ■ a written contract for the sale of property contains warranties conditioned upon payments of the purchase-price being made according to the terms of the contract, the failure to pay the first instalment when due will' not estop the purchaser from relying upon a breach, where it appears that the failure to make the payment furnished no excuse for the neglect of the vendor to remedy .the breach.</p> <p>3. ■- Action for Purchase-price — Breach of Warranty — ■ Estoppel. A written contract for the sale of a heating plant contained certain warranties conditioned upon payments of the purchase-price being made in accordance with the terms of the contract. When the plant was installed it was ebnceded that it failed to fulfil the warranties. Held, that the failure of the purchaser to pay the first instalment of the purchase-price,, which was due by the contract when the plant-was installed, did not estop the purchaser from setting up the breach of warranty as a defense to an action for the purchase-price.</p> <p>4. Written Contract — Modification—Oral Agreement — Consideration. In an action to recover the purchase-price of a-heating plant sold upon a written contract which allowed the vendor to have until the second winter to fulfil certain warranties, held, that the evidence showed a valid and sufficient consideration to support a subsequent oral agreement by which the vendor agreed, if permitted to alter the plan and scheme of the heating plant, to remove the same at once in case it failed to fulfil the warranties after the alterations, were made.</p>