The opinion of the court was delivered by
Horton, C. J.:The plaintiff in error insists, first, that the trial court erred in refusing a new trial; and second, in denying his motion for judgment on the findings, and ren*88dering judgment for the defendant in error. The theory of his counsel is, that as his client had never taken possession and never exercised any ownership over the land, and had repudiated the entire contract, the defendant in error had two remedies. An action at law for damages for the breach of the contract, and the measure of his damages, would be the actual loss in the bargain, which, if he retained the land, would be the difference between the contract price and the value of the land at the time of breach, or when suit was brought, if the land had fallen in value. If, however, the land had not depreciated in value, the damages would be nominal. If the redress afforded in this way was by reason of any peculiar circumstances an inadequate compensation to him for the loss in the bargain, then his only other remedy would be in equity. In such an action he could force a sale of his land, and obtain the price the vendee originally agreed to pay. This theory of counsel, and the numerous authorities cited by him, are scarcely applicable to the particular facts of the case at bar. There is no difficulty in determining the character of the contract, and the intention of the parties at its execution. The covenants to pay the installments of the purchase-money sued for, were all independent of and intended by both parties to precede the actual conveyance of the property described. As a general rule, the intention of the parties when plainly expressed in the contract must govern; and in this case the failure of the plaintiff in error to take possession of the premises, his disowning all claim to them, and his attempted repudiation of the entire contract without the assent of the vendor, did not change the rights of the defendant in error to recover for the installments. The contract being valid, the rights of the plaintiff in error were the same as under any other written contract of sale, where the stipulations of the purchaser are to pay at times before he is to have conveyance.
The reported cases which hold that an action will lie for such installments of purchase-money to be paid in advance of the conveyance, are numerous. In these cases it is no de*89fense to a suit for the money that the deed has not been made or tendered, or that the plaintiff might have a remedy in another form of action: Bingham on Sale of Real Property, 744; Davis v. Heady, 7 Black, 261; Harrington v. Higgins & Peck, 17 Wend. 376; Paine v. Brown, 37 N. Y. 228; Darling v. Little, 26 Pa. St. 502; Crawford v. Robie, 42 N. H. 162; 4 Greenl. (Me.) 258; Bagley v. Eaton, 5 Cal. 497; Goodpaster v. Porter, 11 Iowa, 161.
This conclusion is also in accordance with the previous decisions of this court, so far at least as any expression has been given to the construction of the contracts between vendor and vendee. (Courtney v. Woodworth, 9 Kas. 443.)
The judgment of the district court must be affirmed.
All the Justices concurring.