
    M. D. Gonder et ux., Appellants, v. Z. R. Carter et ux., Appellees.
    
    No. 17,034.
    HEADNOTE BY THE REPORTER.
    Specific Performance — Discretion of Trial Court. In an action for specific performance, held that the right to special find- ' ings was waived because they were not requested in time, that in the absence of such findings no distinct question of law is presented, and that it can not be said that the trial court abused its discretion in refusing a decree.
    Appeal from McPherson district court.
    Opinion filed May 6, 1911.
    Affirmed.
    
      R. R. Vermlion, Earle W. Evans, and W. F. Lilleston, for the appellants.
    
      J. M. Grattan, and G. F. Grattan, for the appellees.
   Per Curiam:

This is an appeal from a judgment rendered in a somewhat involved suit for specific performance. The controlling testimony was given orally and portions of it are conflicting. No findings of fact or conclusions of law were separately stated. Consequently this court can not tell what the views of the trial court were respecting either the law or the evidence. The plaintiff waived' his right to special findings by making his request for them too late, and the result is that a consideration of the real merits of his case on appeal was in practical effect waived. If the district court, even at some inconvenience, could have complied with the request it would have greatly aided this court in reviewing the proceedings.

It seems probable that specific performance was denied because an early consummation of the contract was contemplated, which became impossible. While there was no agreement to exchange deeds at once and while the contract did not stipulate that time was of its essence, still, in specific performance, the court may inquire into the situation and avowed objects and purposes of the parties, and if they should show that time was in fact an important element of the transaction it may control the decree. Evidence of this kind does not impeach or modify the contract. It merely informs the conscience of the court.

After the time had gone by for the defendants to obtain the benefit which moved them to agree to trade they notified the plaintiffs that the deal was off. Another month elapsed before the plaintiffs were in a position to make a tender. Consequently the court had fair ground for holding that the equities were with the defendants. The evidence in support of this view of the case is not very strong, but it is sufficient to warrant an exercise of that discretion which all equity courts possess in suits for specific performance. At least this court is 'unable to say, from the abstract presented, that the district court abused its discretion.

Assuming that the court held the same view that the plaintiffs take of other matters discussed in the brief the judgment must be affirmed, and it is so ordered.  