Conradt v. Lepper
| Decision Date | 28 August 1905 |
| Citation | 81 P. 307,13 Wyo. 473 |
| Parties | CONRADT v. LEPPER |
| Court | Wyoming Supreme Court |
Original Opinion of July 5, 1905, Reported at: 13 Wyo. 473.
Rehearing denied.
C. W Bramel, for defendant in error, on petition for rehearing.
Upon the former hearing the theory of the plaintiff in error was that the note and mortgage were to be tested by the law of the place where the real estate was situated, and, therefore the mortgage should be upheld, while the theory of the defendant in error was that the note and mortgage constituted a California contract and that under the law of that state the contract must fall. Neither party considered any other matter. The several considerations that went into the total consideration of the note and mortgage were not touched upon by counsel, and were not considered, argued or adverted to and the record that was made was not alluded to upon that proposition. These matters, which formed the basis for a reversal of the judgment, were not presented, and for this reason alone a rehearing should be granted. The transaction was a marginal one, and Gauthier and Conradt sought to evade the laws of California; or the consideration running to Conradt wholly failed by reason of the dissolution of the co-partnership, and by reason of the fact that he never paid the money, which is certainly established by the record. Is a court of equity to close its eyes to all of these matters and now call for an accounting, not to protect Conradt, but to aid and assist Gauthier? How could the delivery of the stock by Gauthier & Co. to Fritsch & Co. cure the illegal transaction and make that good which was illegal? The contract in this case was clearly illegal under the decisions of the courts of California cited in the former brief.
ON PETITION FOR REHEARING.
This cause was heretofore decided by this court. (81 P. 307.) A petition for rehearing was filed, together with a brief in support thereof. Upon an examination of the petition and the brief of counsel, we find nothing presented that was not carefully considered by the court in preparing the former decision. It is contended that the case was decided in this court upon a different theory than that relied upon by either plaintiff or defendant in the trial court, and that defendant was thereby taken by surprise and not given an...
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