Stramel v. Hawes

Citations

• 97 Kan. 120
• 154 P. 232
• 1916 Kan. LEXIS 239

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Action for Breach — Ratification of Contract. 'Where a party to a contract elects to sue upon it for damages resulting from an alleged breach of its terms by the defendant, he thereby ratifies it as a valid contract, binding alike upon himself an¡d the defendant.</p> <p>2. Specific Performance — Performance Impossible — Damages May be Recovered. Although specific performance is still an equitable remedy the granting of which rests in the discretion of the court, the code has abrogated the rule which formerly obtained, that a judgment for damages will not be awarded where specific performance is found impossible unless the court in its discretion and upon a consideration of the equities concludes that it is just and equitable.</p> <p>8. Same — Certain Rules Abrogated by Code. The rule which formerly obtained, that where a party knows at the time he brings suit for specific performance that the contract can not be specifically performed or decreed he will not be allowed to recover compensation 'in the way of damages, has also been abrogated by the code.</p> <p>4. Action — Specific Performance■ — Cross-petition Alleging Plaintiff’s Breach — Damages Recoverable. In an action in which plaintiff sues to recover damages for the breach by defendant of a contract to exchange real estate, the defendant may set up a cross-petition alleging that plaintiff breached the contract and ask for specific performance with a prayer in the alternative for damages, notwithstanding defendant is aware of the fact that plaintiff has put it beyond his power to perform.</p> <p>5. Specific Performance — Action to Set Aside Judgment — Equitable Considerations Unavailable. Where plaintiff brings an action to recover damages for the defendant’s breach of a contract to exchange real estate and the court finds that it was the plaintiff and not the defendant who breached the contract, a' judgment in defendant’s favor on his cross-petition for damages wil