Baker v. Jones

• Decision Date: 27 February 1952
• Docket Number: Nos. 2517,2521,s. 2517
• Citation: 240 P.2d 1165,69 Wyo. 314
• Parties: BAKER, v. JONES et al. (two cases).
• Court: Wyoming Supreme Court

Page 1165

240 P.2d 1165

69 Wyo. 314

BAKER, v. JONES et al. (two cases).

Nos. 2517, 2521.

Supreme Court of Wyoming.

Feb. 27, 1952.

W. B. Jones, Wheatland, J. A. Greenwood, Cheyenne, for W. B. Jones and Bentley Shields.

Kline & Kline, Cheyenne, for George Baker.

ILSLEY, Justice.

Both plaintiff Baker and defendant Collins have appealed from the decree entered, Baker from a portion of the decree and Collins from all of the decree. These appeals are consolidated for hearing and disposition.

The defendant Bentley Shields filed no pleading, makes no appeal, although he testified as a witness.

Since the filing of these appeals, the defendant and appellant W. E. Collins in the one case and the defendant and respondent in the other case died and W. B. Jones has been duly and legally appointed as the administrator of the W. E. Collins Estate. W. B. Jones, as such administrator, has been substituted as a party defendant and appellant in the one case and as a party defendant and respondent in the other case.

Plaintiff Baker, by his petition, seeks to enforce specific performance of a contract; he also asks for damages and an injunction. Defendant Collins by his answer denies the right of Baker to specific performance claiming forfeiture of the contract and a decree quieting title to the lands and for an accounting during time plaintiff was in possession.

In the beginning plaintiff asked for and received after a hearing an order granting a temporary restraining order enjoining defendants from interfering with plaintiff's use and possession of the lands in question and from interfering with plaintiff in harvesting crops growing on the lands, such restraining order was to remain in effect until the case is disposed of on its merits.

The essential facts developed on trial are these:

On the 9th of April, 1948 the contract sued upon was entered into between Collins, the defendant and seller of the property in question on the one hand, and Baker, the plaintiff and purchaser, on the other, in the words following:

'The seller agrees to sell and the purchaser agrees to purchase the following described property, to-wit:

The S 1/2 of Section 21 Township 21 North, Range 65 West of the 6th P. M.

for the sum of $9,600.00 and, 39 head of mixed and unbranded cattle,

for the sum of $3,900.00, being the aggregate sum of $13,500.00, which said purchase price and all deferred balances shall bear interest at the rate of 5 per cent per annum from the date hereof.

'The sale and purchase price shall be paid at the times and in the manner following:

'Not less than $1,000.00 and the accrued interest on September 1, 1948;

'Not less than $1,000.00 and the accrued interest on January 31, 1949; and

"The purchaser shall pay not less than $1,000.00 and the accrued interest on each September 1st and each January 31st thereafter until the purchase price and the accrued interest shall be paid in full.'

'And it is understood and agreed that the purchaser may pay any part of said purchase price in advance of the schedule of minimum payments above stated.

'It Is Agreed and Understood, that the purchaser shall have possession of the farm grounds on the above described premises and that the seller may occupy the house thereon until November 1, 1948, and that said seller shall remove all his horses from said premises not later than June 1, 1948.

'It Is Agreed and Understood that the purchaser shall have the immediate possession of said live stock, and that he shall not sell or encumber the same, but the title thereto and all increase therefrom shall be and remain in the seller, until the purchaser shall have paid not less than $4,000.00 on the above mentioned purchase price.

'It Is Further Agreed and Understood that the Stock Growers Bank of Wheatland, Wyoming, (without financial responsibility to said Bank) is hereby constituted the escrow holder of this agreement and shall receive a copy thereof, together with a warranty deed to the above described premises running from the seller to Edgar R. Baker, together with an Abstract of Title extended down to current date evidencing said premises to be free and clear of all liens and encumbrances, and a Bill of Sale to the above described cattle. All of the above payments shall be made at said Stock Growers Bank for the credit of the seller, and said escrow holder is instructed as follows:

'Upon the payment of not less than $4,000.00, on the principal the said Bank shall deliver to the purchaser the above mentioned Bill of Sale;

"Upon the full payment of the total purchase price the said escrow holder shall deliver to the purchaser the above mentioned warranty deed and Abstract of Title.'

'Should the purchaser fail, neglect or refuse to promptly keep and perform all of the terms and conditions hereto, then and in that event the seller may declare this contract terminated and at an end, and may immediately take possession of the above mentioned cattle and all increase and the above described real property. And in such event may retain all sums paid under this agreement, as and for liquidated damages and rent. Provided, however, that if the purchaser shall have received the Bill of Sale by making payment as aforesaid then said purchaser may retain said cattle and increase, and the seller shall not then and in such event have a right to the return of said cattle.

'In event that said contract shall be terminated as aforesaid the escrow holder is directed to mark the above mentioned deed void and the said Bill of Sale void, if the same has not been previously delivered, and return said instrument or instruments, together with the Abstract of Title to the seller.

'It Is Agreed and Understood that the purchaser may have possession of said premises and may occupy and improve the same as long as he shall keep and perform the conditions hereof, and no longer. And that if said contract be terminated prior to the payment of not less than $4,000.00, on the principal, then he shall and does hereby agree to deliver the peaceful possession of said cattle to the seller.

'It Is Agreed and Understood that the purchaser shall pay all taxes accruing on said cattle and premises for the year 1948, and all subsequent taxes.'

Baker thereupon took possession of the cattle and the land. He took down some fence, broke 50 acres of new land, planted 90 to 100 acres of fall wheat, made a payment of $290 on June 18, 1949 to Collins and on September 9th made a payment to Collins of $3,689. Baker received credit of $15 for hauling Collins' goods; also paid the first half of the taxes for the year 1948. Baker states that 'along the last of August (1948) some time, Mr. Collins said he would wait for the money; he didn't need the money; what he wanted was interest.' Baker states he offered to pay $2,000 more some time in December. Collins did not accept the payment but said, 'You are done, you are through.' That defendant Bentley Shields was in actual possession of the land from December, 1948 to July, 1949 by a lease arrangement with Collins and did summer fallowing, and the sum of $1,650 is allowed to Shields for this work in the trial court's decree and which plaintiff Baker is required to pay.

Collins states that he had a conversation with Baker in September or October, 1948, in regard to the $1,000.00 payment and interest due September 1, 1948, under the contract, and 'I asked him to pay--it was the 1st of September payment--and he said he would pay it. That was the first time.' Collins had another conversation the latter part of October when he asked Baker to make the first of September payment and he said he would. 'At first he said he didn't have to pay it, did he? I said, 'Yes, you do, in order to make the contract good,' and he said, 'I will, in a couple of weeks or so.'' About a month later he again asked Baker to make payment but he didn't make it. On the 24th of December, Collins admits that Baker wanted to pay him $2,000, the September 1st payment of $1,000 and the January, 1949 payment of $1,000. Collins told him, 'I couldn't accept the money because we didn't have any contract; that he was out of the contract. I couldn't accept; that I had no right to.' J. E. Foreman, President of the Stock Growers Bank, who had the contract in escrow, stated the abstract was not deposited there; that Collins demanded his papers back and on December 3, 1948 the contract and warranty deed were returned by the bank to Collins.

Up to December 3rd Collins was willing to accept the payments under the contract. As stated in his words, 'anxious to, yes.' He kept the $3,900 paid and considered on December 3rd that the cattle were Baker's.

With respect to the damages to plaintiff by reason of his being prevented from taking care of a growing crop of crested wheat grass, counsel for plaintiff in his brief waives all claims for such damage.

Mr. Foreman, the President of the Bank, states that on June 18, 1948 Baker paid $290. On September 9, 1948 a payment of $3,610.00 and interest of $79.00 was made by Baker and he states that there was a balance due on the contract of $9,600.00. The contract, plaintiff's Exhibit Number 5, shows endorsements on the back of same as follows:

'Endorsements on principal 6-18-1948 $290.00

'Balance due on principal 13,210.00

'9-9-1948 3,610.00

'Balance due on principal 9,600.00' 'There is a further endorsement on the back of the contract 'Interest paid to 9-9-48-$3900.00=$79.00.'

Foreman also stated that on December 3, 1948 Mr. Collins came around and demanded his papers in escrow, that is, his contract and warranty deed back, and they were given to him. There was no abstract to return as none was deposited. The court asked the defendant the following:

'Q. Mr. Collins, did you say that on December 3, 1948 you informed Mr. Baker that he was through? Is that the date? A. It was December 24th, the day before Christmas. * * *

'Q. Day before Christmas you told him he was through. He asked you...