Cardwell v. Horning

Citations

• 106 Kan. 208
• 187 P. 879
• 1920 Kan. LEXIS 487

Syllabus

<p>SYLLABUS by the court.</p> <p>1. Contract — Sale of Wheat — Failure of Seller to Deliver — Evidence— Finding of Jury — Instruction Erroneously Refused. In an action to recover damages for failure to deliver wheat according to the terms of a contract, the jury returned a verdict for the defendant and made a finding that the contract, which was oral, was that defendant should deliver the wheat at Grantville within thirty days, providing plaintiff furnished cars, which plaintiff failed to do. On the trial defendant admitted at the time the contract was made plaintiff said to him he would accept the wheat piled on the ground at Grantville if cars could not be obtained. Held, that the matter of furnishing cars was for the benefit of the plaintiff, and that it was error to refuse to give an instruction that plaintiff’s failure to furnish cars would not justify the defendant in rescinding the contract if the jury further found that plaintiff was willing to accept the wheat at Grantville and pay for the same, and so advised the defendant.</p> <p>2. Same — Sale of Wheat — No Tender of Delivery Under Controxt. On the trial the defendant testified that the only notice he ever gave plaintiff that he could come and get the wheat was at the time the contract was entered into, when the plaintiff said to him, “You give me two or three days’ notice and I will give you cars,” and defendant replied, “You have got your notice now.” Upon this evidence alone the jury made a finding that “the defendant . . . tendered wheat to plaintiff according to contract the day contract was made.” Held, that ths evidence was insufficient to sustain a finding that the defendant tendered a delivery of the wheat under the contract.</p>