167 Ky. 295
Court of Appeals of Kentucky.
Dec. 10, 1915.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by Jonathan Jenkins against John Bolen and others, to compel specific performance of a contract to convey land.
From a decree enforcing performance, defendants appeal.

By a written contract dated June 17, 1912, the appellants John B. Bolen and Puss Bolen, his wife, sold to the appellee Jonathan Jenkins a tract of land supposed to contain 200 acres, situated on the waters of Felt Gayheart Branch, in Knott county, at $10 per acre. Jenkins paid $200 of the purchase price at the time the contract was made.

The description of the land was in very general terms, and the contract provided for the fixing of the correct acreage by a survey to be paid for by Jenkins. Bolen, however, was to make his deed, containing a covenant of general warranty and the other usual covenants; and Jenkins was to pay the remainder of the purchase price upon the delivery of the deed.

Jenkins caused a survey to be made by Adam Campbell, a competent surveyor. According to this survey, appellant's tract contained 167.32 acres; and, upon Jenkins demanding a conveyance from appellant in accordance with the survey, appellant declined to perform the contract, upon two grounds: (1) That the written contract was not the true contract, which was that Bolen was to receive $10 per acre for all the land contained within his boundary, and $700 in addition thereto; and (2) that the boundary contained more than 167.32 acres, and that as much as 30 acres of his land had been omitted from Campbell's survey.

Appellant insists that the $700 bonus was not embraced in the contract, for the reason that Jenkins did not want it put in the contract for fear it might unduly enhance the price of coal lands in that neighborhood, and that it was, for that reason, a secret agreement between appellant and Craft, the agent who conducted the business for Jenkins.

The chancellor specifically enforced the contract, and Bolen appeals.

In addition to the two defenses above specified, Bolen asks a reversal upon the further ground that Jenkins never made a tender of the purchase money.

1. Disposing of the last question first, it is clear under the facts of this case that no tender upon the part of Jenkins was necessary, since Bolen repudiated the contract and refused to make the deed before he was finally called upon to comply with his contract. He did not put his refusal upon that ground; and by resting it upon the two grounds above specified he made a tender unnecessary. In 36 Cyc. 705, the rule is stated as follows:
"Where the vendor has repudiated the agreement, thus making it appear that if the tender were made its acceptance would be refused, tender or offer by the vendee before suit is unnecessary. Equity does not require a useless formality."

2. The issue as to the incompleteness of the written contract was sharply drawn; Bolen alleged it, and Jenkins denied it, entirely. Craft, who acted for Jenkins in the trade, says that after he had made a contract to buy the land of Taulbee Bailey, which adjoined Bolen's land on the east, Craft, Campbell and Dobson went upon the land for the purpose of fixing the division line between Bolen and Bailey. Bolen met them on the ground, and there was some conversation between him and Craft about the sale of Bolen's land to Jenkins. Craft told Bolen there was a 10-acre lap of his land that was claimed or owned by Bailey. Craft says that upon this occasion, he, Bolen and Campbell practically agreed upon a conditional division line between the lands of Bolen and Bailey, and that Craft offered Bolen $10 an acre for all of his land that was below the conditional line. Campbell says Craft offered Bolen $10 per acre for his actual boundary, but that there were 70 acres of the Bolen land that were claimed by Bailey, and that Craft proposed to take care of Bailey's claim.

No trade was made, however, upon that occasion, and nothing was said about the $700 claim afterwards asserted by Bolen. A few days later, however, Bolen called at Craft's residence and accepted his offer, and the terms of the sale were reduced to writing in the form of the contract of June 17, 1912.

Jenkins paid Bailey $100 for the 10-acre lap or interference above referred to. Jenkins also paid Bailey for the 70 acres which both he and Bolen claimed, and offered to complete the contract with Bolen by paying him at the rate of $10 per acre for the 167.32 acres found to be within his boundary, according to the Campbell survey. Craft says, emphatically, that the only thing that passed between him and Bolen as to the $700 item was his proposition to pay Bolen for the land actually within his boundary, and to pay Bailey for what he claimed of Bolen's land, which was estimated at about 70 acres, in addition to the 10-acre lap above referred to; and that, in this way, Bolen would be paid for 70 acres of land within his boundary, that Bailey claimed to own. Jenkins' side of that issue is sustained by Craft, Campbell, Dobson and the writing. On the other hand, Bolen is sustained alone by his own testimony, in so far as direct proof is concerned. The testimony of his brother, Reece Bolen, and Reece's wife, referring to certain conversations between Campbell and Bolen, and between Craft and Bolen, would not, if competent, sustain, Bolen's claim. These conversations are too vague and indefinite to amount to proof.

As an instance of this deficiency in appellant's proof, Reece Bolen testified that Campbell said he figured that the land would bring, or cost, about $13.50 per acre. When it is remembered that Jenkins paid Bolen for his land within his boundary at $10 per acre, and also paid Bailey for the 70 acres within the Bolen boundary, the land probably did stand Jenkins about $13.50 per acre, although Bolen was to get only $10 per acre, according to the contract.

3. Appellant's claim that 30 acres of his land was not included in the survey made by Campbell is without merit. Appellant had *353 Cornett to make a survey of his land; and the substance of Cornett's testimony is that the boundary laid off by Campbell contained 165.75 acres, a difference of less than 2 acres--the Campbell survey showing the greater acreage. If Cornett found the Campbell boundary to be incorrect in any respect, he failed to disclose the fact.

So, upon these issues of fact, we are not prepared to say that the findings of the chancellor were against the weight of the evidence; on the contrary, the weight of the parol testimony sustains the contract, as written.

Judgment affirmed.

Ky.App. 1915.
180 S.W. 351, 167 Ky. 295


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