O'Brien v. Hunt
Decision Date | 28 January 1970 |
Docket Number | No. 3760,3760 |
Citation | 464 P.2d 306 |
Parties | Vernon A. O'BRIEN, Appellant (Plaintiff below), v. Cecil L. HUNT, also known as Cecil L. (George) Hunt, and F. Ann Hunt, Appellees (Defendants below). |
Court | Wyoming Supreme Court |
Roncalio, Graves & Smyth and John R. Smyth, Cheyenne, for appellant.
D. N. Sherard, Wheatland, P. J. Heaton, Sidney, Neb., for appellees.
Before GRAY, C. J., and McINTYRE, PARKER and McEWAN, JJ.
Vernon A. O'Brien sued the Hunts for the return of $15,000, which he had paid on a July 1967 sales contract for the sellers' interest in a Concession Lease Agreement between the Parks Commission of Wyoming and George Hunt, together with a cafe building, motel, trailer park, boats, and other equipment used by the Hunts in the operation of the Glendo Marina. Plaintiff brought his action in three counts, alleging that (a) there was failure of a condition precedent, that is, of securing the State's consent to the assignment of the concession; (b) the contract had been induced by fraud; and (c) the forfeiture provision was unconscionable. 1 Defendants answered, asserting among other things that plaintiff had not requested the State's approval of the assignment but instead had, after taking possession of the Glendo Marina and the purchased equipment, operated the concession some six weeks during July, August, and early September, when he had ceased operation, and that he had thereafter appeared before the Wyoming Recreation Commission (formerly the Parks Commission), urging that body to disapprove the assignment.
When the case was tried, the defendant at the conclusion of plaintiff's evidence moved for a judgment and the request was granted, resulting in this appeal. The evidence developed at the trial disclosed that the property at the marina together with the sellers' interest in the concession was sold by defendants to plaintiff for $55,000, payable $15,000 before possession, with the balance in 240 equal monthly amortized payments. Mr. O'Brien paid the $15,000, entered into possession on July 18, and operated the business during the remainder of July, through August (making one payment for that month), and for four days in September, at which time he 'turned it back.' According to Mr. O'Brien around August 20 'I could see that I wasn't making any money and I told Mr. Hunt this added with also other problems and I-without saying how many problems I had I offered to turn it back to him for ten thousand and him keep the other five thousand and he wasn't interested.' He did not at any time ask the Wyoming Recreation Commission for consent or approval of the assignment, but subsequent to the time he 'turned it back,' he and his attorney appeared before the commission, and both asked it not to approve the assignment of the concession. They first appeared before the commission alone, but that body postponed the matter until Mr. Hunt could also be present.
According to a letter from the director of the commission, the minutes of the meeting stated:
After reciting that Mr. Hunt and his attorney appeared, the minutes continued:
The core of the appeal is the question presented by plaintiff's first point, Should the court require a seller to return all of the moneys paid by the purchaser because a condition precedent in the contract was not fulfilled? The mentioned condition precedent was:
In his argument here, plaintiff emphasizes the words 'for any reason' and insists a meeting of a condition precedent is an absolute prerequisite to defendants' retaining the down payment. As a basis for that argument, he quotes 6 Corbin, Contracts, § 1368, p. 521 (1962):
* * *'
To a similar effect he cites Rossignol v. Morgan & Jacobs, Inc., 191 La. 462, 185 So. 883; Ramey v. Gent, 103 Colo. 423, 86 P.2d 1083. He fails, however, to address himself to circumstances existing in the present case, i. e., his appearance with counsel before the commission and the request it not grant the assignment of the concession when prior thereto he had told Mr. Hunt he was not going to make any more payments and had turned back the business to him.
In Thatcher v. Darr, 27 Wyo. 452, 199 P. 938, 947, 16 A.L.R. 1442, this court said that he who himself prevents the happening of performance of a condition precedent upon which his liability by the terms of a contract is made to depend cannot avail himself of his own wrong and relieve himself from his responsibility to the obligee and shall not avail himself, to avoid his liability, of a nonperformance of such condition precedent, which he has himself occasioned against the consent of the obligee. 2 It would be difficult to imagine a situation where the evidence would more positively require the application of this rule than the one presented in the instant litigation. Accordingly, plaintiff is in no position to escape liability from the failure of performance.
As a further ground of reversal, plaintiff contends that a court of equity will not allow plaintiff to forfeit 25 percent of the total price and that defendants have been unjustly enriched. However, his authorities in this aspect are inapposite, pertaining entirely to enforcement of, rather than relief from, claimed forfeiture and hence totally lack cogency. He also suggests that defendants' acceptance of the property when possession was returned to them may even constitute a rescission of the whole contract, but his suggestion seems to be nothing more than speculation, unsubstantiated even by argument. From a review of the record, we are convinced that the trial court was justified in granting the motion to dismiss since plaintiff had not shown himself entitled to demand the relief claimed.
Affirmed.
There can be no dispute of the proposition that he who prevents the happening or performance of a condition precedent in a contract cannot avail himself of his own wrong. That is not to say,...
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