Norris v. Evans , 39 Kan. 668 ( 1888 )

Opinion by

Holt, C.:

This is an action to enforce the specific performance of a contract which was entered into on the 7th day of October, 1878, by Eliza C. Evans, then Eliza C. Giffin, and her husband O. P. Giffin, with M. L. Norris for the sale of the real property adjoining the city of Topeka. Norris was to pay $500 for it, as follows: $25 to be paid in a note executed at the time the contract was made; $200 in work and labor to be done during the year next following the date of said contract; and $275 to be paid in cash within said year, with interest at ten per cent, per annum. This trial was had upon the 2d day of September, 1885, in the superior court of Shawnee county, and a demurrer was sustained to the evidence offered by the plaintiff.

It appears from the testimony that after this contract was entered into, the plaintiff performed $51 of work and then abandoned it; and afterward, after a lapse of four years, made a tender of what he supposed to be a sufficient amount due upon the contract. The land in the meantime had risen in value from $500 to $5,000. The plaintiff made no offer after the month of November, 1878, to comply with the terms of the contract, nor in any way perform his part of the same, until March, 1883, when he made the tender, which we are satisfied was sufficient in amount. We are precluded, however, from examining this action upon its merits. There was no motion made for a new trial, which is indispensable under our practice, when a demurrer to the evidence has been sustained. (Gruble v. Ryus, 23 Kas. 195.)

We recommend that the judgment be affirmed.

By the Court: It is so ordered.

All the Justices concurring.