Burbank v. Paige

• Citation: 75 P.2d 387,52 Wyo. 383
• Decision Date: 25 January 1938
• Docket Number: 2033
• Parties: BURBANK v. PAIGE
• Court: United States State Supreme Court of Wyoming

75 P.2d 387

52 Wyo. 383

BURBANK v. PAIGE

No. 2033

Supreme Court of Wyoming

January 25, 1938

APPEAL from the District Court, Albany County; V. J. TIDBALL, Judge.

Action in the nature of ejectment to recover possession of land by Ethel Burbank against Electa D. Paige. From a judgment for defendant, plaintiff appeals.

Affirmed.

For the appellant, there was a brief and an oral argument by Lenoir Bell of Laramie, Wyoming.

This is an action in ejectment. Plaintiff leased the premises to defendant. The issue presented to the court below was whether defendant had a right to purchase the premises under the terms of the option given in the lease, by giving proper notice of her election to do so. The lease expired August 10 1936. Defendant failed to pay rent on March 10, 1936, and plaintiff commenced this action. Defendant in her answer filed on May 8, 1936, alleged that she elected to purchase the premises, in accordance with the option in her lease. On May 20, 1936, respondent served on appellant's attorney another notice of election to purchase the premises. Appellant refused to comply on the ground that it was not made in time. An option once exercised is exhausted. Water Co. v. City, 146 F. 8, 8 Ann. Cas. 660; 35 C J. 1040. It is elementary that once the offer is accepted, it is binding on the offerer. 35 C. J. 1041; Wagner v McLay, 138 N.E. 164. Respondent is estopped to deny the sufficiency of the election on May 8, 1936; Corp. v. Cyder, 197 N.E. 750; Behr v. Hurwitz, 105 A. 486. By breaking the contract of lease, the option was lost. The pretended election of May 20, 1936, was an empty gesture. The rule regarding notice in such cases is set forth at 23 C. J. 110. Company v. Newton, (Colo.) 115 P. 897; State v. County Clerk, 43 Wyo. 461; Company v. Phillips, 48 Wyo. 390; Tibbals v. Graham, 61 P.2d 279. Earlier decisions of the court show uniform adherence. Hahn v. Bank, 25 Wyo. 467; Koch v. Koch, 41 Wyo. 450; Lindback v. Lackey, 41 Wyo. 493; Samuelson v. Publishing Co., 41 Wyo. 487; Auto Company v. Bundy, 42 Wyo. 68; Coal Company v. Sikora, 42 Wyo. 60; In re Contas, 42 Wyo. 59; State v. Allen, 42 Wyo. 51. Respondent by giving notice of election to purchase in her answer filed on May 8, 1936, terminated the relation of landlord and tenant and raised in its stead that of vendor and purchaser. This being true, there was then no option to be exercised on May 20, 1036. On appellant's demand that respondent re-tender the rent, respondent refused to do so. This is fatal to the judgment in her favor. State v. District Court, 38 Wyo. 427; 62 C. J. 693; Freeman v. Fleming, 5 Iowa 460. Rent-paying is a practical matter. Bonfils v. Ledoux, 266 F. 507, 16 A. L. R. 430; Farmer v. Pitts, (Nebr.) 187 N.W. 95; Wylie v. Kirby, (Md.) 80 A. 692; Oil Company v. Paxton, (Ky.) 2 S.W.2d 650, 56 A. L. R. 797. The court erred in refusing to grant appellant leave to conform her reply to the facts proved in the trial. Respondent could not be tenant and owner at the same time. The payment of rent for the period of March 12, 1936, to June 20, 1936, was an unequivocal waiver, renunciation, abandonment, relinquishment and forfeiture of all rights of purchase, if any remained under this lease. 35 C. J. 1045; Walshe v. Endom, 55 So. 744. The judgment below should be reversed.

For the respondent, there was a brief and an oral argument by S. Glenn Parker of Laramie.

The only question in this case is whether respondent had a right to purchase the premises. The trial court held that appellant acquiesced in the judgment by accepting moneys under the judgment. Appellant thereafter filed a motion to vacate the judgment. 3 C. J. 681; 2 R. C. L. 63; 8 Bancroft's Code Practice and Remedies 8451. Appellant's main contention is that the notice of election was insufficient. We believe the point to be immaterial. Davis v. Whitehead, 13 Wyo. 189, 79 P. 19. Respondent has obeyed all directions of the court. The unfairness of appellant appears in her insistence upon payments she had so often refused. State v. Court, 33 Wyo. 427; Loomis v. Pengree, 43 Me. 299; George v. Schuman, 202 Mich. 241; Lindholm v. Patrick, (Wash.) 181 P. 878. The judgment should be either affirmed by this court, or if it be held that the option became effective on May 8, 1936, the judgment should be amended accordingly.

BLUME, Chief Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

This is an action in the nature of an ejectment, to recover the possession of property located at 319 Garfield St., in the city of Laramie, Wyoming, on account of the non-payment of rent. On August 8, 1935, the plaintiff and appellant, Ethel Burbank, and Electa D. Paige, defendant and respondent herein, entered into a contract whereby the plaintiff leased to the defendant the property above mentioned for the period of one year commencing with August 10, 1935, until August 10, 1936, at a rental of $ 125 per month, payable in advance on the 10th day of each month. The defendant herein contends that the date of payment was subsequently orally changed from the 10th of each month to the 12th of each month, on account of the fact that defendant did not obtain possession of the premises until August 12, 1935. This contention was sustained by the trial court, and that finding is acquiesced in by the appellant herein. The contract above mentioned also provided that the defendant should have the option to purchase the property above mentioned at any time during the life of the lease, by giving the plaintiff thirty days' notice of such an election. The terms upon which the purchase was to be made were set out. We need not mention the details except to say that it was agreed that whatever sum of money the defendant had paid as rental of the premises should be applied upon the purchase price. Rental was duly paid up to and including the month of February, 1936. On March 11, 1936, the plaintiff gave notice to the defendant of an election to forfeit the lease on account of the non-payment of rent on March 10, 1936. On March 12, 1936, the defendant made a tender of the amount of rent due, but that was refused. Tender was also made of the rent due during the following months, but in each instance was refused. On May 8, 1936, the defendant filed her answer herein, alleging that she holds under an unexpired lease; that the date of payment of the rental was by oral agreement fixed on the 12th of each month as already above mentioned; that she tendered the rental on March 12, 1936, and on the 12th day of the subsequent month, and that she has been ready and willing to pay the rental on or before the day the same was due, and that she now offers payment of all past due rental on the property. Defendant further pleaded that she elects to purchase the demised premises, giving, by the answer, notice of her intention to do so, upon the terms and conditions set forth in the agreement above mentioned. On May 20th, 1936, the defendant caused a notice to be served upon the plaintiff herein, notifying the latter on that date that defendant had elected to purchase the above mentioned property upon the terms and conditions of the agreement above mentioned, and also stating: "I wish to make the option effective within thirty days from the date on which you receive this letter. Will you accordingly notify me at once of your compliance with my election." On the next day the plaintiff sent a letter to the defendant as follows:

"Yesterday, May 20, 1936, I received your letter stating your election to purchase the premises described as 319 Garfield Street, Laramie, Wyoming in the lease between us dated August 8, 1935. In view of the fact that you have forfeited all rights under said lease and that your election has not been made in time, I refuse to comply with the election expressed in your letter."

On September 25, 1936, the plaintiff filed a reply to the answer of the defendant filed in the case, in substance alleging that the attempted forfeiture of the lease was justified. She prayed that all rights of the defendant in and under the lease be adjudged forfeited and of no effect and that the defendant be adjudged to have no right to purchase the premises. The cause came on for trial before the court without a jury on January 30, 1937. Before any evidence was introduced counsel for the plaintiff stated that he would object to any evidence of a tender of the rental unless the defendant would bring the money into court at that time. The objection was subsequently repeated, and at one time counsel for the plaintiff asked whether or not the defendant refused to again tender the money. Counsel for the defendant thereupon responded: "No; we are willing to make the tender, although we are not in a position to make it at this time because we do not have the money here in court and are not now able to make the tender, but we do not refuse." Evidence as to the tender was received by the court subject to the objection. On March 3, 1937, the court entered judgment herein, holding that the plaintiff had no right to attempt to cancel the lease on March 11, 1936; that thereafter, on May 20, 1936, the defendant gave notice of election to purchase the property under the terms of the contract heretofore mentioned, and that this notice became effective on June 20, 1936; that defendant is now entitled to purchase the property according to the agreement. The court therefore ordered that the terms and conditions upon which the defendant would be entitled to purchase the property were, among other things, that defendant should pay in cash the sum of $ 859.15, composed of $ 408.33 rental of the premises from March 12, 1936, to June 20, 1936, and the sum of $ 450.82 for an amount paid out by the plaintiff on the mortgage against the premises which the...