Felix v. Bevington

Ellison, J.

This action was begun before a justice of the peace for money had and received. On appeal to the circuit court plaintiff recovered on trial without instructions.

For the purpose of a proper disposition of the cause it may be stated in a few words as gathered from the testimony of plaintiff himself. Defendant sold to plaintiff one-half interest in his saloon in Kansas City, as well as the lease on the building, for $500. Of this sum $200 was paid at the time, and $200 was to be paid in two days, and a note for $100 executed, due in thirty days. The $200 cash was paid. The remaining $200 was not paid at the time stated, nor has it been since, nor has it been tendered. The excuse given for not paying is that plaintiff took sick a day after the sale and remained *406 sick several days; that the first day he recovered he-was subpoenaed as a witness in court at Kansas City; that when court adjourned on that day he went to defendant at five o’clock in the evening to tell him that he had been detained in court. Other portions of his testimony show that he was about plaintiff’s place before this, and told him that he could pay nothing that day as he was sick. The sale was made on Monday, the twenty-fourth of February, and plaintiff states in one portion of his testimony that he was at the place on Tuesday and Wednesday, and at another place he states that it was Monday of the following week when he was in attendance on the court. On that Monday still not having paid or tendered to defendant the money due, he says that defendant told him he would run the saloon himself, and that he thereupon demanded of defendant the $200 he paid at the beginning, which defendant refused, and he thereafter instituted this action before a magistrate.

Allowing to plaintiff’s testimony all that can be allowed or reasonably inferred, and it is still hard to make out just how he put in the eight days from the sale till his demand for the return of his money. It is clear that he was not sick during all of the period after he was to have paid the remaining $200, nor was he in court. But, granting that he was either sick or in court, how can that excuse him in a court of law-for a breach of his contract? If sickness or the mere matter of being subpoenaed in court would justify the breach of contracts, business would be too precarious for safety. Our opinion is, that plaintiff shows himself without legal excuse for his breach, and that he is, therefore, in default so far as concerns the present action; being in default he is not in the position to defeat the contract by rescission. Bishop on Contracts, secs. 1849, 1418, 1434, 1437.

*407 We will say further, since much stress is put upon the matter in respondent’s brief, and since we must disallow his contention, that when defendant demurred to the evidence at the close of the plaintiff’s case, and thereafter, on its being refused, introduced testimony in his own behalf, he took the risk of aiding plaintiff’s case by such testimony, and practically waived the demurrer, and he cannot afterwards be heard to complain of the refusal. But if his testimony does not come to plaintiff’s relief he may if he chooses again demur at the close of the whole evidence. But the cause at bar being before the court without a jury, he need not necessarily again demur. If he does not he will not be held to admit that plaintiff has a standing on the facts. He is entitled to a proper finding on the whole evidence as presented.

The judgment is reversed.

All concur.