Blanchard v. Jackson

[243] The opinion of the court was delivered by Johnston, J. : The lands purchased by Jackson, the title of which has been determined and quieted in this action, were part of a large grant formerly owned by the Atchison, Topeka & Santa Fe Railroad Company. To dispose of these lands the railroad company organized a land department, and placed a commissioner in charge who employed local, field, and foreign agents to assist him. Blanchard had been employed as an agent of the company, and was therefore familiar with the different terms and plans upon which the lands were sold by the company. A list of prices was fixed upon the lands, but they were disposed of upon several well-known plans, one of which was the cash plan, under which a purchaser paid cash and was allowed a large discount from the list price. Another was the three-year plan, where there was a smaller discount, one-third of the price paid down and the balance in two annual payments. Another was the six-year plan, under which a purchaser got a small discount, a small portion of the price was paid in cash and the balance in six annual installments. There was an eleven-year plan, under which there was but. little discount and the payments were made in eleven annual installments. The company also made provision whereby a proposed purchaser might, upon the payment of $100 upon a section, withdraw such land from sale from 30 to 60 days, during which time the purchaser had the option to purchase the land at the list price under any of the plans of sale which have been mentioned; but if he failed to exercise his option and make a purchase within the time limited the money advanced was forfeited to the company. It appears that the terms of this provision were sometimes [244] varied, and that the company at times reserved the land for a smaller amount per section than $100. Blanchard had taken several options up°n railroad lands, and in some cases had succeeded in negotiating a sale of the lands reserved before the expiration of the option. In 1884 he had deposited money and obtained an option in the name of Wolf for a body of land, and having failed to purchase the same within the prescribed time, the reservation had been revoked and the money declared forfeited. About December 12, 1884, Blanchard went to Garden City, where he talked with Holmes & Co., who were the local agents at that place for the sale of the company’s lands, about taking an option on the lands in controversy. The result of the talk was that he gave Holmes a check for $1,700 to reserve 17 sections of land, for which a receipt was given. On the next day a further conference was had between them, in which it was agreed that Plolmes should go to Topeka and intercede with the land commissioner in behalf of Blanchard to set aside the forfeiture upon the Wolf land, and also to make a further arrangement by which 25 sections of the cheaper lands on the south of the river might be reserved upon the payment of $50 per section. In connection with this arrangement, and to assist in carrying it out, Blanchard gave Holmes an additional check for $8,375.68. There is little if any dispute between the parties as to the facts stated, but there is a sharp conflict in the testimony as to the terms of the options and the subsequent transactions between the parties. ' It is conceded that Holmes went to Topeka at the instance of Blanchard and secured a reinstatement of his Wolf option which had been forfeited, by using the $1,700 which had been advanced as a deposit to reserve a portion of the lands in controversy, and that he also induced the [245] land commissioner to withdraw these lands for a few days without a deposit, upon condition that a deposit of $100 per section on the lands north of the river and $50 per section for 25 sections of the lands south of the river should be forwarded on or before January 1, 1885. No money was paid to the commissioner with which to reserve the land until February 4, when Holmes made a deposit of $2,000, taking a receipt therefor, and this was the only writing which ever passed between the parties in regard to this option. As will appear, the reservation was taken by Blanchard in the name of M. A. Carpenter for a period of 80 days. The following is the document: “Topeka, Kas., February 4, 1885. “Messrs. I. R. Holmes & Go., Garden City, Kas.: Dear Sirs — In reply to yours of-, inclosing two thousand dollars as deposit for thirty days, account of M. A. Carpenter, on the following lands, [here follows description of 18 sections north of the river and 25 sections south of the river] . We await receipt of further advice and application. Yours truly, A. S. JOHNSON, Land Commissioner On May 29, 1885, the land commissioner notified Blanchard that the deposit had been forfeited because of non-compliance with its provisions. Blanchard asserts that on December 13, 1884, he entered into an agreement with Holmes by which he was to go to Topeka and arrange with the land commissioner to give him an option of one year from that time upon the lands, on condition that he would pay $100 per section for 18 sections and $50 per section for 25 sections, and the further arrangement-that he would build some houses and make certain improvements upon the land, and that Holmes afterward notified him that such an arrangement had been made. He claims to have paid $3,200 under this agreement with which to re [246] serve the land, and that subsequently, at considerable expense, he erected several houses and made other improvements upon the land. He further claims that once, in April, 1885, he arranged a sale of 30 sections to a man named Cole, and that a draft for $25,000 was actually sent to the land commissioner to pay for the land, but it appears that the letter transmitting the draft contained conditions which prevented its acceptance, and the draft was returned. On July 13, Blanchard says that he arranged a sale or transfer to one Crawford for 24 of the sections for $25,000, and a draft for that sum was actually forwarded to the commissioner, who responded that the amount forwarded was more than sufficient to pay for the lands described ; that no more than $21,359.30 would be required, and an inquiry -was made as to what should be done with the excess, $3,640.70. It appears that this information was not in keeping with the representations made by Blanchard to Crawford, and the latter telegraphed the commissioner to hold the draft until explanations were obtained. Afterward Crawford directed the return of the draft, and no other or further attempt was ever made by Blanchard to comply with the conditions of his option, nor were any further steps taken toward a purchase of the land. Holmes says that no more than $2,000 was ever paid upon the option, and positively denies that he made any agreement with reference to improvements, or that the option should be extended for a pei’iod of one year. It is conceded that he had no authority to make such a contract without obtaining the express consent of the commissioner, and it is further conceded that Blanchard knew at the time he paid the $2,000 to Holmes that Holmes had no such authority. [247] 1- SlotUseito aotlon^^ evidence"! [246] There is a large volume of testimony of the most [247] contradictory character, but there being no special findings, and the general finding of the court being against the plaintiff in error, all these disputes must be resolved against him. There is much said in his brief respecting the weight of the testimony, which in this state of the case is unavailing. "We cannot weigh the testimony to determine the preponderance, nor go further than to inquire whether there is sufficient to sustain the general finding of the trial court. The case might have been reviewed more satisfactorily if special findings of fact had been made, but without them we must infer that the general finding of the court includes in dt every material fact, and that . where there is some proper testimony to support every essential element of the general finding, a judgment based thereon cannot be disturbed by the supreme court. (Railroad Co. v. Foster, 39 Kas. 329 ; Mushrush v. Zarker, 48 id. 382.) In this view we must, conclude that Blanchard did not at any time pay sufficient money to reserve the land for any period ; that no agreement was made that he might have an option for a year by reason of making certain improvements upon the land; that he has not even complied with the terms of the option which he alleges was given to him ; that he has never purchased the land, nor elected under which one of the plans upon which it was offered for sale he would purchase it; that he has never at any time paid or tendered the purchase-price of the land under any plan ; and that before the lands were sold by the company, he abandoned his option and surrendered any claim which he ever had to a right to purchase. Blanchard asks a specific enforcement of a contract of purchase when no purchase has in fact been made. During the limit of the option [248] he could select any one of four or five different methods under which the company sold its land, and such selection would fix the amount of the purchase-price and the terms of payment. Until that was done no one could know how much land was to be taken, nor the price to be paid, nor what would be the times of payment. The option agreement was binding on the parties, and might have been enforced at the instance of Blanchard if he had elected to purchase and had complied or offered compliance with the terms of the agreement within the stipulated time. (Bras v. Sheffield, 49 Kas. 702.) There was no such compliance, however, within the time fixed in the written option, nor yet within the year which Blanchard said was agreed upon.. It appears that Blanchard made several unsuccessful efforts to dispose of the land early in the year 1885, and although the time had elapsed, it seems that the commissioner was still willing to let him have the land on his option as late as July 15, 1885. Blanchard earnestly contends that the draft which was then forwarded by Crawford from Chicago entitled him to 24 of the sections included in the option. It appears, however, that the money was withdrawn before it could be applied, on account of misrepresentations made by Blanchard with regard to the cost of the land. We fail to find anything in the testimony indicating a purpose on the part of the commissioner or other of the agents of the company to frustrate the efforts of Blanchard in disposing of the land within the specified time. Looking at the testimony of the defendant in error as we are required to do, it would seem that considerable indulgence and leniency had been shown to Blanchard in carrying options for him, even after some of the conditions had been broken. [249] After the Crawford transaction, in July, 1885, no effort was made by Blanchard to exercise his option or comply with any of its conditions. Indeed, it appears that soon afterward trouble arose which caused him. to flee the country, and there is testimony that on his return, in December, 1885, he acknowledged that he had lost the lands in question, and made statements indicating an abandonment of his option. It is true that he made improvements on some of the lands, but the houses were soon sold and removed to satisfy claims and liens against them. They were placed on the land, as we must assume, without authority, and with a knowledge by Blanchard that he would lose them, as well as the deposit, in case he failed to exercise and protect his option. There is testimony .that he Avas advised not to make any improvements upon the land because of the risk he would run of losing the deposit and improvements in case he was unable to make the purchase, but he insisted that he was positive that he would be financially able to close the deal, and was therefore willing to assume the risk. [250] 2‘ [249] Proof was offered that the land was vacant .and unoccupied when it was sold to Jackson, and, as the testimony stands, Blanchard is not in a position to claim anything by reason of the improvements that were made upon the same. He failed to sustain the allegations of his cross-petition, and was therefore denied relief. Under the testimony and general finding, he had nothing more than an option, by which the cost of the land and terms of sale were to be determined upon election of one of the plans under which the land would be sold ; and, as no election was ever made, the price of the land and terms of payment were never determined. No contract of sale was ever made, and, as the parties have never settled upon what the contract [250] should be, the court certainly could not make and enforce one for them. Considerable testimony was offered by Blanchard to sustain his view, and much is said in his behalf about the overwhelming weight of evidence being in his favor; but, as has been seen, his testimony is contradicted by that of the other parties, and the general finding of the court upon the conflicting testimony is conclusive-here. That finding determines that Blanchard utterly failed to comply with the conditions of his option, and that he has forfeited all rights under it. ■There are some objections to rulings upon the admission of testimony, but we find nothing in them of a substantial character, or which require special comment. The judgment of the district court will be affirmed. All the Justices concurring.