Claughton v. Johnson

• Decision Date: 11 December 1934
• Docket Number: 1851
• Citation: 38 P.2d 612,47 Wyo. 447
• Parties: CLAUGHTON, ET AL. v. JOHNSON, ET AL
• Court: Wyoming Supreme Court

38 P.2d 612

47 Wyo. 447

CLAUGHTON, ET AL. v. JOHNSON, ET AL

No. 1851

Supreme Court of Wyoming

December 11, 1934

ERROR to the District Court, Natrona County; V. J. TIDBALL, Judge.

Action by Frank Johnson, acting for himself and the co-partnership and as co-partner of the co-partnership consisting of A Claughton and Frank Johnson, and doing business under the name and style of Columbia Bowling Alleys, against A Claughton and others. Judgment for plaintiff, and defendants bring error.

Modified and Affirmed.

For the plaintiffs in error, there was a brief by Hagens and Wehrli of Casper.

The petition is fatally defective. (a) The amount of tender pleaded is insufficient. (b) Tender alleged was not made in time. (c) It is not alleged that National Realty Company had any connection with defendant until after contract was cancelled. (d) It is not alleged that the contract was illegally cancelled. (e) The only tender alleged is the one made on February 8, 1933. (f) No facts are pleaded showing why a court of equity should relieve plaintiff. (g) No offer is alleged to pay the fair rental value for the use of the property. (h) No offer to do equity is alleged. We cite the case of Quinlan v. St. John, 201 P. 149, which we believe to be squarely in point. Where facts pleaded show default, plaintiff should plead other facts showing why he should be relieved from forfeiture. Clifton v. Wilson, 132 P. 424; Montana Company v. Ry. Company, 139 N.E. 876. Equity will not relieve where there is no reasonable excuse for non-performance of the contract within the time therein provided. 58 C. J. 1102; Wood v. Sheffner, 94 N.E. 24; 1 Pomeroy's Equity Jurisprudence, 3d Ed., Sec. 455; Fratt v. Company, 133 P. 700; Johnson v. Sekor, 101 P. 829. Where time is made the essence of the contract, a tender after action instituted by the vendor, is too late. Whiteman v. Perkins, (Nebr.) 76 N.W. 547; Lyttle v. Company, 50 S.E. 402; 21 C. J. 882; Danziger v. Benson, 166 P. 313; Shreeves v. Pearson, 230 P. 448; Garvey v. Barkley, (Wash.) 104 P. 1108; Prairie Company v. Leiberg, (Idaho) 98 P. 616; Robnett v. Miller, (Ill.) 135 N.E. 705. Without quoting further from the text of decided cases, we desire to refer to the following authorities which have applied the same principles of law to the facts involved. Cue v. Johnson, 85 P. 598; Meagher v. Hoyle, (Mass.) 54 N.E. 347; Jeffrey v. Company, (Pa.) 53 A. 772; Watkins v. Youll, 96 N.W. 1042; Skookum Oil Company v. Thomas, (Cal.) 123 P. 363; Gray v. Pelton, (Ore.) 135 P. 735; Nakidem v. Brazil, (Ark.) 208 S.W. 431; McLaughlin v. Nelson, (Nebr.) 202 N.W. 871; Bonham v. Canal Company, (Wash.) 132 P. 884; Douglas v. Hanbury, (Wash.) 104 P. 1110; Kellogg v. Mallory, (Cal.) 119 P. 937; Keller v. Garneaux, (S. D.) 180 N.W. 779; Gibson v. Pitney, 200 Ill.App. 244; Bush v. Merrill, (Texas) 206 S.W. 834. The suit was not prosecuted in the name of the real party in interest as required by statute, Sec. 89-501, R. S. 1931. 47 C. J. 43, 957.

For the defendant in error, there was a brief by F. W. Layman, of Casper. The cause was submitted for both parties without oral argument.

The case of Quinlan v. St. John, (Wyo.) 201 P. 152, cited by plaintiff does not seem to be in point upon the facts here, for the reason that that case was a legal action. The petition alleges facts showing reasons for the delays in making payments and good faith on the part of plaintiff, which we believe are sufficient to warrant relief in equity from forfeiture of the contract. Parker v. Meadows, 122 P. 586. The Realty Company accepted the $ 25.00 payment made by Mae Claughton. Time was not the essence of the contract because defendant waived that provision by accepting delinquent payments and permitting the August, 1931, payment to remain in default and accepting payments after such default. 66 C. J. 695, 698; Berding v. Company, (Ida.) 211 P. 62; Stark v. Norton, (Ariz.) 211 P. 66. The rule of law seems to be that where the vendor has placed it out of his power to perform in accordance with the terms of the contract, tender need not be made. 66 C. J. 1508; Key v. Vidovich, (Cal.) 209 P. 375; Johnson v. McMullin, (Wyo.) 21 P. 701. Assuming that defendant did not waive the time clause of the contract, the facts alleged in the plaintiff's petition still entitle him to relief in a court of equity for the reason that the partnership for which the plaintiff had brought this action had placed improvements on this land approximating $ 4500.00, and had paid all but $ 25.00 of the purchase price of $ 800.00. No doubt, the officers of the defendant company realized this and for that reason sold the property to defendant Mae Claughton for the amount of the balance due on the contract, to-wit: $ 25.00. The contention of the plaintiff set out in this paragraph is supported by authority. Wheeler v. Mather, (Ill.) 8 Am. R. 683; DeGood v. Gettle, (Kan.) 240 P. 960. Equity will relieve against a forfeiture where circumstances justify it. 86 Am. St. R. 48, et seq.; Edgerton v. Peckham, 11 Paige 352. A bona fide purchaser is defined in 9 C. J. 1146. Defendant Mae Claughton does not qualify under that definition. The principle set out in 9 C. J. 1174, under the subject "Cancellation of Instruments" applies to this case. The title passing to Mae Claughton had all the elements of fraud and therefore she should be entitled to no consideration in a court of equity. Plaintiff contends that his petition states facts entitling him to relief in equity against forfeiture of the contract by the defendant National Realty Company.

Hagens & Wehrli in reply.

One seeking equitable relief on the ground of fraud must specifically allege and prove facts and circumstances constituting the fraud. 21 C. J. 396; Kahn v. Insurance Company, 4 Wyo. 419; Patterson v. Company, 7 Wyo. 401. That the selling price was less than the alleged value of the property does not authorize a legal presumption of fraud on the part of the majority of stockholders. Smith v. Stone, 21 Wyo. 62; Williams v. Yocum, 37 Wyo. 432. A forfeiture was enforced in the case of Parker v. Meadows, 122 P. 586, cited by defendant in error. The question of improvements is referred to and 27 R. C. L. 667 is cited. Plaintiff never started to do anything until long after the default had occurred. The facts in the case of Berding v. Company, (Idaho) 211 P. 62 are not analogous to the facts in the case at bar, but the principle of forfeiture was supported in that case. Time was not made the essence of the contract in Stark v. Norton, (Ariz.) 211 P. 66. In Cue v. Johnson, (Kans.) 85 P. 598, forfeiture was waived by the conduct of the parties. We believe the following authorities sustain our position: Mueller v. Michels, (Wis.) 197 N.W. 201; 39 Cyc. 1563; 27 R. C. L. 446. The powers of a special agent have been repeatedly and strictly defined by our Supreme Court. Hayes v. Pierson, 32 Wyo. 416; Brown v. Grady, 16 Wyo. 151; Raymond v. Insurance Company, 40 Wyo. 1; Wood v. Stevenson, 30 Wyo. 171; 2 C. J. 583. A court of equity having obtained jurisdiction of a controversy on any ground will retain such jurisdiction for the purpose of administering complete relief. 21 C. J. 134; 21 C. J. 137; 10 R. C. L. 1070; Vierra v. Fontes, (Kans.) 66 P. 241; McGowan v. Parish, 59 L.Ed. 955. The judgment below should be reversed and the case ordered dismissed.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This action was brought by Frank Johnson, on behalf of himself and the co-partnership of Claughton and Johnson, plaintiffs, against A. Claughton, Mae Claughton and National Realty Company, as defendants, to set aside a certain deed made to Mae Claughton. The court granted the relief prayed for and the defendants have appealed.

The petition alleges in substance: Plaintiff Frank Johnson and A Claughton are partners. On May 19, 1931, they entered into a written agreement with the National Realty Company for the purchase of lots 5 and 6 and part of lot 7 in Block 178 of the City of Casper, agreeing to pay therefor the sum of $ 800, with a down-payment of $ 300 and the remainder to be paid in monthly installments of $ 25 each. The agreement and a deed for the lot were placed in escrow with a Casper bank. The partners made monthly payments, sometimes later than agreed, but the realty company did not object to belated payments. By January, 1933, the partners had paid the sum of $ 775 on the lots, leaving due only the sum of $ 25.00. On September 10, 1932, defendant A. Claughton agreed to make all payments still due on the contract of purchase. No demand for any amount still due was made on plaintiff, but on January 26, 1933 (the last payment due not having been made), the Realty Company demanded from the Casper bank all papers relating to the contract of purchase, declaring that it was in default and terminated. The Casper bank complied with this demand. Prior thereto plaintiff had inquired of the bank the due-date of the last payment and was informed that it was on February 3, 1933. On January 27, 1933, the Realty Company executed a warranty deed for the property in question to Mae Claughton, wife of A. Claughton; that at that time she had full knowledge of the agreement of purchase above mentioned and of the amount due thereon; that she is not a purchaser in good faith and received the deed for an inadequate consideration. On February 8, 1933, plaintiff tendered to the Realty Company the sum of $ 25.00. The tender was refused, but plaintiff is ready and willing to pay that sum at any time. The partners went into possession of the property involved after the agreement of purchase was made, and have continued in possession up to this time and made improvements thereon of the value of $ 3500. The defendant A....