Eldridge v. Rogers

• Decision Date: 05 March 1929
• Docket Number: 1507
• Parties: ELDRIDGE v. ROGERS [*]
• Court: Wyoming Supreme Court

275 P. 101

40 Wyo. 89

ELDRIDGE v. ROGERS ^[*]

No. 1507

Supreme Court of Wyoming

March 5, 1929

APPEAL from District Court, Laramie County, WILLIAM A. RINER, Judge.

Action by Charles Eldridge against Ralph Rogers. From the decree defendant appeals.

Affirmed.

Charles E. Lane, for appellant.

The court erred in denying defendants application for a continuance. 13 C. J. 36, page 138. Plaintiff's petition did not state a cause of action. 9 C. J. 1159; 4 R. C. L. 46. No tender was proven. Frink v. Thomas, 12 L. R. A 239. Kares v. Covell, (Mass.) 62 N.E. 244. The court erred in allowing plaintiff's costs, Chapter 369 C. S. Equitable relief is not controlled by the prayer, State v. Tooker, 34 L. R. A. 318; Davis v. Davis, 9 Mont. 268; Kleinschmidt v. Steele, 15 Mont. 118. Vendor never offered to repay what he had received from the vendee. The petition did not allege facts sufficient to justify a cancellation of the agreement, Smith v Jones, 21 Wyo. 62, and was insufficient to support the judgment, Crewdson v. Nefsy, 14 Wyo. 63. The defect was not waived by defendant, Spaugh v. Peterson, 34 Wyo. 374; Grover v. Ditch Co., 21 Wyo. 204. The facts alleged in a petition must determine the nature of the relief to be granted, Herring v. Lumber Co., 74 S.W. 1011, 42 L. R. A. (N. S.) 64; Vorhees v. Porter, 65 L. R. A. 736. Where vendor repudiated the contract, purchaser may sue for recovery of payments, 39 Cyc 2001, Kares v. Covell, supra. Plaintiff had an adequate remedy by strict foreclosure, Baldwin v. McDonald, 24 Wyo. 136. Proceeds from condemnation of land under contract must be paid to the purchaser, Stevenson v. Loeher, (Ill.) 11 A. R. 36. Where vendor rescinds a contract of purchase, he cannot sue for unpaid purchase money, Portner v. Tanner, 30 Wyo. 91, and he must place purchaser in statu quo, 16 Oh. St. 444. The petition must show a right to relief, Brown v. Carpenter, 57 N. J. Eq. 23, and notice of rescission must be given, Winfield v. Water Co., 51 Kas. 70; Dotterer v. Freeman, 88 Ga. 479; Co. v. Powell, 97 Ala. 483; Barquin v. Co., 28 Wyo. 151. As to the recovery of costs, see Pettingill v. Mather, 16 Abbott's Prac. 399, 20 Wyo. 170.

L. C. Sampson, for respondent.

The notice of appeal was not sufficient. 6402 C. S. Application for continuance did not show sufficient grounds. 9 Cyc. 95, 13 C. J. 141. The defendant was in default and was given an opportunty to comply with his contract which he failed to do. Plaintiff did not rescind the contract. Damages arising in condemnation proceedings paid to plaintiff were applied upon the indebtedness. Plaintiff received nothing more than reasonable rental in the aggregate of the payments made on the contract by the defendant. The petition set forth the original contract and the decree is sustained by the evidence. Hunt v. Laramie, 26 Wyo. 160; Huber v. Bank, 32 Wyo. 358. The remedy followed in Kares v. Covell cited by appellant is not applicable. The following cases support the judgment, Stevenson v. Lohler, 57 Ill. 509; Nixon v. Marr, 190 F. 913; Kughu v. Freeman, 15 Kas. 423. The allowance of oral arguments are within the discretion of the trial court in non-jury cases.

Before BLUME, C. J., KIMBALL, J., and BURGESS, District Judge. BLUME, C. J. and KIMBALL, J., concur.

OPINION

BURGESS, District Judge.

The parties to this action entered into a written agreement in substance as follows: Eldridge, the plaintiff, was to sell and Rogers, the defendant, was to buy certain land therein described for the sum of $ 1,600 to be paid on or before March 15, 1925, with interest payable annually. Upon the payment of the purchase price and interest, Eldridge was to convey to Rogers by warranty deed a valid title in fee simple to said lands. Should Rogers fail to pay he was to forfeit any and all rights to said land, and any and all moneys paid on the purchase price. Rogers was to have possession of the land so long as he complied with the terms of the contract but upon breach by him his right of possession was to terminate. Rogers was to pay the taxes for 1922 and subsequent years.

March 5, 1927, Eldridge brought suit in the District Court of Laramie County against Rogers and in his petition alleged among other things that Rogers had defaulted in the payment of the purchase price and the interest thereon, and the taxes and prayed that the contract between the parties be cancelled; that plaintiff be awarded possession of the lands; that an accounting be had, and that the defendant be decreed to have forfeited any rights to said land and to any part of the purchase price paid.

To the petition the defendant Rogers filed an answer and cross petition in which he sets up a general denial and then alleges that before the arrival of the time for the payment of the purchase price, Eldridge had conveyed to Laramie County a portion of said land, and that he had been damaged to the amount of $ 1312.96. In his prayer he says "Wherefore, defendant concurs with prayer of plaintiff that the contract now existing between plaintiff and defendant be rescinded and cancelled;" that he be awarded his damages, etc.

The reply of the plaintiff in substance was that the land in question held by Laramie County was taken for road purposes by virtue of condemnation proceedings, and that he himself had never conveyed it.

Upon the trial of the cause the court entered a decree in which it found "that the defendant is in default in the payment of principal, interest and taxes, and that both plaintiff and defendant have asked for a cancellation of the contract." It was therefore, ordered and adjudged that the contract in question be cancelled, and that the plaintiff recover his costs. The decree goes no further than the cancellation of the contract and the awarding of the costs of the case to the plaintiff.

It is now urged by the defendant that the plaintiff's petition did not state facts sufficient to entitle him to a cancellation of the contract, and that the evidence is insufficient to support the decree entered.

It is a sufficient answer to this contention to say that in cancelling the contract the court did only what both the plaintiff and the defendant asked it to do. Not only did the defendant in his answer and cross petition "concur with the prayer of plaintiff that the contract be rescinded and cancelled," but at the trial in one of his objections to the testimony of the plaintiff he calls the court's attention to the fact that he (the defendant) is also asking that the contract be rescinded. Under these circumstances the defendant can not now complain of the cancellation of the contract by the court.

The court was justified in awarding the plaintiff his costs, Sec. 5920, W. C. S. 1920.

Conceding but not deciding that the defendant was entitled to damages as alleged in his cross petition the burden was upon him to prove them and he made no attempt whatever to do so.

On October 10, 1926, the lower court set the case for trial on October 26, and counsel was notified....