Hawkins v. Kingston

SAWYER, C. J. The demurrer to the answer was prop^ erly overruled. We are satisfied that the exhibits “A” and “B,” under the circumstances shown, should be read together as parts of one agreement. They were parts of, and together constituted, one transaction. Thus considered, the payment of the purchase money and taking possession were to be concurrent acts. The substance of the contract, to be gathered from the several instruments taken together, is, that Kingston conveys one-half of the ranch and stock to Kneeland, but possession is not to be taken till payment of the purchase money. The payment of the purchase money and taking possession being concurrent and dependent acts, the one was not entitled to demand possession without, at the same time, paying, or tendering the purchase money; nor the other to demand the purchase money, without, at the same time, surrendering, or offering to surrender, the possession. The case is fully within the principle of Hill v. Grigsby, decided at the last term. The court instructed the jury in accordance with this view, and we think there was no error in the rulings upon the instructions. We think there was no error in allowing defendant to examine, as to Exhibit “B,” plaintiff’s witness, called to prove the execution of Exhibit “A.” The subject matter is so closely related as to form parts of the same transaction. It is, at worst, only a question as to order of proof, and this is regulated very much by the discretion of the judge. Nor was there any error on the ground that Exhibit “B” is unstamped. The plaintiff had given in evidence a part of the agreement, also unstamped, and we think the defendant was entitled to show the whole. Besides, if there was error, the plaintiff cured it in a subsequent step of the proceedings, by himself introducing the same papers in evidence. Judgment affirmed. We concur: Rhodes, J.; Sanderson, J.; Sprague, J.; Crockett, J.