M. E. Fowler & Co. v. Quall , 36 Kan. 507 ( 1887 )

Opinion by

Simpson, C.:

The first question in this case, and it may be a decisive one, is, how are these contracts to be regarded ? Is that of the 20th of March, made by the plaintiffs in error, as the agents of Burns, merged in that of the 21st, made by Burns, the owner ? Or does the contract of the 21st supersede that of the 20th ? Or are they to be considered as separate and independent agreements, each creating mutual rights and obligations without reference to the other ? Or are they to be taken and construed together as one, each to be read in the reflected light of the other? We are inclined to adopt the theory that the contract of the 20th, a mere memorandum of the terms and conditions of a sale, by the agents of the owner, to be accepted by the owner, is superseded by that of the 21st, made by the owner himself with the defendants in error.

A fair construction of the first contract, made by the agents on the 20th, is, that the defendants in error offer to buy the property on the terms specified, and if the offer is accepted by Burns, the owner, a contract for the sale and conveyance of the property is made; but if the offer is not accepted, then the $140 as part payment is to be returned to the defendants in error. With this construction of this agreement, it is perfectly evident that no obligation to return the money would rest on the agents unless Burns, the owner, would refuse to accept the offer; and the converse of this proposition is, that if Burns did accept their offer to buy, then the money paid was to be retained. On the next day the parties came together at the office of plaintiffs in error, and executed the contract for sale and conveyance of the 21st. It may be that in most if not all of its terms and conditions it departs from the one executed on the previous day; but if it does, it is the mutual act of the parties thereto, and they always have the right to change the conditions of their contract. It is nevertheless for all purposes an acceptance by Burns of the offer of the defendants in error to buy the houses and lots, and is a compliance with the terms of the contract so far as the payment and retention of the one hundred and forty dollars is concerned. To be a little more explicit,'and to confine the last remark within the limits intended for its operation: It is a justification of the payment of that sum by Fowler & Co. to Burns. Of course we are not to be understood as expressing any opinion as to what weight any or all of these things may or might have in an action by the defendants in error against Burns. Nor do we stop to inquire, because it is immaterial in this view at whose request or for what purpose the contract of the 21st was varied from the first one in several particulars. We must take these contracts as the parties made them, and construe them by their words and the acts and situation of the various parties in relation to their subject-matter. This much may be very confidently said, that the contract of the 21st was the immediate and direct result of that of the 20th, made by the same parties about the same subject-matter, the only variance being about the time and amount of payments, and forever disposed of the first and substituted the second as being the last and best expression of the intention of the parties. It is by this new agreement that the rights, duties and obligations of the parties to this action must be measured and determined.

Whatever remedy the defendants in error may have against Burns, it must be conceded that on the state of facts shown by the record, they cannot maintain this action against the plaintiffs in error for the recovery of the $140 received by them as a part payment on the sale of the lots. One very good reason for this is, because the condition upon which it was paid to them as agents was, that their principal should accept «the offer. This, as wre have already stated, was done by the subsequent agreement. A contract of purchase and sale was entered into and signed by all the parties. There is another very good reason disclosed by the record why this action should not be maintained against Fowler & Co. On the trial of this cause in the district court, Fowler swore, and it was undisputed, that this sum of one hundred and forty dollars secured by the plaintiffs in error, from the defendants in error, was paid over to Burns by him in the presence of and by the consent of the defendants in error; thus most conclusively showing that at that time they regarded the subsequent contract as an acceptance of their offer.

It is recommended that the judgment be reversed, and the cause remanded to the district court, with instructions to grant a new trial.

By the Court: It is so ordered. All the Justices concurring.