McKee v. McClain

Citations

• 112 Kan. 746
• 212 P. 906
• 1923 Kan. LEXIS 477

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale of Land — Statute of Frauds — Written Receipt for Part Purchase Price— Signed by Vendor Only — Purchaser Not Bound. A written instrument acknowledging receipt of a payment upon the purchase price of a farm, specifying the balance due, with other details to be performed by the vendor, and which is signed by the vendor only, while binding on him, does not bind the purchasér, following Guthrie v. Anderson, 47 Kan. 383, 28 Pac. 164; id., 49 Kan. 416, 419, 30 Pac. 459.</p> <p>2. Statute of Frauds — Receipt and Certain Bonds — Bank Stock Placed in Escrow — Defective Title in Vendor — Vendee Entitled to Stock in Escrow. Assuming that a valid contract for the sale and purchase of a farm was established by the written receipt of part payment and acknowledgment of the vendor and by a separate assignment of certain bank stock by the vendee, which instruments were placed in the hands of a third party as escrow holder to await full performance by vendor and vendee, it is held that the evidence adduced in plaintiff’s behalf was sufficient, as against a demurrer, to show that the contract failed through want of title in the vendor and not through the fault of the vendee, and that the vendee’s administrator was entitled to recover the bank stock from the escrow holder.</p> <p>3. Same — Evidence—Communication With Deceased Person. A contracting vendor’s testimony touching the oral features of an agreement between him and the deceased contracting vendee, relating to the sale and purchase of land, was incompetent under section 320 of the civil code, which disquali-' fies a witness to testify in his own behalf concerning any transaction or communication had personally by such witness with a deceased person, in an. action where the adverse party is the administrator of the deceased contracting vendee.</p> <p>4. Same — Trial Without a Jury — Effect of Incompetent Evidence. Rule followed, that where a cause is tried without a jury the presumption i