Portner v. Tanner

• Decision Date: 17 July 1923
• Docket Number: 1060
• Citation: 216 P. 1069,30 Wyo. 85
• Parties: PORTNER v. TANNER
• Court: Wyoming Supreme Court

216 P. 1069

30 Wyo. 85

PORTNER v. TANNER

No. 1060

Supreme Court of Wyoming

July 17, 1923

APPEAL from District Court, Natrona County; HON. C. O. BROWN, Judge.

Action by W. M. Portner against J. W. Tanner to recover upon certain checks made and delivered by defendant to plaintiff in pursuance of an executory contract of sale upon which payment had been countermanded by defendant and a forfeiture of the contract declared by plaintiff. There was judgment for defendant and plaintiff appeals.

Affirmed.

J. M Hodgson for appellant.

The action was for a recovery upon two checks drawn by respondent and delivered to appellant on June 21st, 1920, one for $ 725.00, the other for $ 775.00 as the first payment on a contract for the purchase of real estate, payment of which checks was countermanded by respondent; the drawer of a check who countermands payment thereby dispenses with presentment notice of dishonor and protest, (3272, 3317 C. S. 1910; Bank v. Korn, 179 S.W. 721; Scanlon v Wallach, 102 N.Y.S. 1090; Purchase v. Mattison, 13 N.Y.S. 587; Brady Bank Cks. 113-120.) The delivery of the contract by plaintiff was sufficient consideration to support the check. (American Auto Co. v. Perkins, 77 A. 954; Hawkins v. Windthorst, 108 P. 805; Tradesmen's Nat. Bank v. Curtis, 60 N.E. 429; Philpot v. Gruninger, 14 Wallace, 570; Caren v. Leibonvitz, 99 N.Y.S. 952; Harris v. Johnson, 134 P. 1048; Doyle v. Dixon, 97 Mass. 208-213; Tilton v. Musgrave, 169 Ill.App. 243; Hamer v. Sidway, 27 N.E. 256, 124 N.Y. 538; Bolles v. Sachs, 33 N.W. 863; Pierce v. Stolhand, 124 N.W. 259; Marling v. Fitzgerald, 120 N.W. 388.) The promise of the defendant to pay the checks was an independent contract. (Emerson v. Slater, 22 How. 43, 16 L. ed. 365; Violett v. Patton, 5 Cranch, 150, 3 L. ed. 61; Townsley v. Sumrall, 2 Peters, 182, 7 L. ed. 386.) The delivery and acceptance of the checks was the first payment, and plaintiff's right to recover upon them is the same as he would have to retain the installment had it been paid in cash. (Lawrence v. Miller, 86 N.Y. 132; Havens v. Patterson, 43 N.Y. 218; Hillyard v. Banchor, 118 P. 67; Long v. Clark, 135 P. 673; Bartlesville Oil Co. v. Hill, 121 P. 208; Sanders v. Brock, 79 A. 772; Jones v. Mississippi Farms C., 76 So. 880; Glock v. Howard & Wilson Co., 55 P. 713; Downey v. Riggs, 70 N.W. 1091; Grimes v. Goud, 10 A. 116.) Remedies for a breach are as binding as a stipulation for performance in a contract. (Cresswell Co. v. Martindale, 63 F. 84; 11 C. C. A. 33.) The checks sued upon, represented plaintiff's liquidated damages for breach of contract. (Roehm v. Horst, 178 U.S. 1, 44 L. ed. 956; Anvil Mining Co. v. Humble, 153 U.S. 540; Lowe v. Harwood, 29 N.E. 538; Weill v. American Metal Co., 54 N.E. 1050; Paine v. Brown, 37 N.Y. 228; Ballou v. Billings, 136 Mass. 307; King v. Faist, 37 N.E. 459; Busch v. Stromberg-Carlson Co., 217 F. 328, S. C. 133 C. C. A. 244; Kokomo Co. v. Inman, 134 N.Y. 92; Frost v. Knight, L. R. 7 Ex. 111; National Co. v. Vulcanite Co., 78 N.E. 414; Remy v. Olds, 26 P. 355; J. K. Armsby Co. v. Grays Harbor Co., 123 P. 32; Windmuller v. Pope, 14 N.E. 436; Central Trust Co. v. Chicago Assoc., 240 U.S. 581; Collins v. Snow, 106 N.E. 148.) Full payment was a condition precedent to respondent's right to receive an abstract and deed under the terms of the contract. (Loud v. Pomona Land Co., 153 U.S. 564, 38 L. ed. 823; Eastern Oregon Land Co. v. Moody, 198 F. 7; Paine v. Brown, 37 N.Y. 228; Bartlesville Oil Co. v. Hill, 121 P. 208; Grays v. Meek, 64 N.E. 1020; (Ill.); Sheeren v. Moses, 84 Ill. 448; Morris v. Sliter, 1 Denio, 59; Harrington v. Higgins, 17 Wendell, 376; Meriden Co. v. Zingsen, 48 N.Y. 247; Shenners v. Pritchard, 80 N.W. 458; So. P. R. Co. v. Allen, 44 P. 796; Donovan v. Judson, 22 P. 682; Voight v. Fidelity Inv. Co., 96 P. 162; Reise v. Westfield, 105 P. 837; Reard v. Ephrata Co., 138 P. 678; Garvey v. Barkley, 104 P. 1108; Sleeper v. Bragdon, 88 P. 1036; Underwood v. Tew, 34 P. 1101; Brenard Mfg. Co. v. Kingston Co., 95 S.E. 1028; Miller v. Wildcat Road Co., 52 Ind. 51; Gale v. Best, 20 Wisconsin, 44; Bean v. Atwater, 4 Conn. 3, 10 Am. Dec. 91; Bowen v. Bailey, 42 Miss. 405, 2 Am. Rep. 601; Biddle v. Coryell (N. J.) 38 Am. Dec. 521; White v. Beard, (Ala.) 30 Am. Dec. 552; Allen v. Sanders, 7 B. Mon. 593; First Nat. Bank of Sparta v. Agnew, 45 Wis. 131; Snyder v. Murdock, 51 Mo. 175; Brame, et al. v. Swain, 15 S.E. 938; Leopold v. Furber, 1 S.W. 404; Tufts v. D'Arcambal, (Mich.) 12 L. R. A. 446.) Courts will not relieve against liquidated damages agreed upon in contracts. (Sun Print & Sub. Ass'n. v. Moore, 183 U.S. 642, 46 L. ed. 366; Clyde Bank & E. S. Co. v. Castaneda, (1905) A. C. 6; Stewart v. Griffith, 217 U.S. 323, 54 L. ed. 782; Western Union Co. v. Brown, 253 U.S. 101, 64 L. ed. 804; Mead v. Wheeler, 13 N.H. 351; Gammon v. Howe, 14 Maine, 250; Maxwell v. Allen, 78 Maine 32.) In an action by vendor for an installment of purchase money due prior to the date agreed upon for delivery of deed, want of title in vendor is not a defense. (Webb v. Stephenson, 39 P. 952; Garberino v. Roberts, 41 P. 857; Joyce v. Shafer, 32 P. 320; Harrington v. Higgins, 17 Wendell, 376; Shively v. Water Co., 33 P. 848; Brimmer v. Salisbury, 140 P. 30; Parkside Realty Co. v. McDonald, 137 P. 21; Johnson v. Johnson, 44 N.W. 668; Ziehen v. Smith, 42 N.E. 1080, 148 N.Y. 558; Higgins v. Eagleton, 50 N.E. 287, 155 N.Y. 466; Carpenter v. Holcomb, 105 Mass. 280; Sleeper v. Nicholson, 87 N.E. 473; Baird Inv. Co. v. Harris, 209 F. 291; Kentucky Warehouse Co. v. Blanton, 149 F. 31.) Oral testimony was inadmissible to vary the terms of the written contract as to the consideration for the giving of the checks, (Stickney v. Hughes, (Wyo.) 75 P. 945; Demple v. Carroll, (Wyo.) 133 P. 137; Phillips Co. v. Seymour, 91 U.S. 646.) Plaintiff not being in default in any respect, defendant's action in countermanding payment of the checks and his repudiation of the contract cannot relieve him from liability. The judgment should be reversed.

George W. Ferguson and Henry E. Perkins for respondent.

The acceptor of a draft or bill of exchange cannot maintain an action for its recovery until he has paid it. (8 Cyc. 22.) The appellate court will not review judgments rendered on conflicting evidence. (Boatman v. Miles, 199 P. 933; Slothower v. Hunter, 15 Wyo. 189; City v. Murphy, 19 Wyo. 238; Riordan v. Horton, 16 Wyo. 363; Kimball Co. v. Payne, 9 Wyo. 441.) Tender of a deed of conveyance by vendor must be shown before action for recovery of purchase money on land sale contract can be maintained. (27 R. C. L. 626; Evans v. Jacobitz, 72 P. 849; Naftzger v. Gregg, 33 P. 757; Collins v. Creason, 106 P. 445; Glock v. Howard, 55 P. 719.) If vendor rescinds contract, after default by vendee he must return to the vendee money paid on the contract. (Christy v. Arnold, 36 P. 920; Glassell v. Coleman, 29 P. 508; Drew v. Pedlar, 25 P. 749; Hurley v. Anicker, 151 P. 593; Glock v. Howard, 55 P. 717; Johnson v. McMullen, 3 Wyo. 237; Phelps v. Brown, 30 P. 774; L. R. A. 1916 C. 893.) A violation of contract by one party relieves the other party, (6 R. C. L. 377; 3 Elliott contracts 2045; Frenzer v. Dufrenne, 78 N.W. 719; Armsby Co. v. Harbor Co., 123 P. 32.) There was no consideration for the checks and plaintiff did not tender performance by offering possession; this is not an action for damages, but is suit to recover on checks. There is no evidence of damage. This is not an action to recover an installment of purchase money. On appeal the evidence of the successful party must be accepted as true. (Boatman v. Miles, supra.) Contract being rescinded, the plaintiff is not entitled to relief and the judgment below should be affirmed.

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

OPINION

BLUME, Justice.

This is an action brought by appellant (plaintiff below) against respondent (defendant below) on two checks given by defendant to plaintiff, both dated June 21, 1920, one for $ 725.00 and one for $ 775.00. The defense made is failure of consideration. The checks were given as initial payment on a contract for sale entered into between the parties wherein plaintiff contracted to sell to defendant the north 28 feet of lot 4, Block 91 in the City of Casper for the sum of $ 4500, of which $ 1500 was to be paid down as initial payment, the balance to be paid in monthly installments of $ 50.00 each on the first of each month. A deed and abstract of title showing good title were to be delivered upon the defendant having performed his covenants. And it was agreed that should the defendant fail to perform his part of the contract, the plaintiff should have the option to forfeit the contract, in which event all payments made should be retained by plaintiff as liquidated damages, and the plaintiff should have the right to re-enter and take possession of the premises. The evidence shows that within a few days after June 21, 1920, the defendant, dispute having arisen as to delivery of possession and because no abstract had been delivered for examination, countermanded the payment of the checks, repudiated the contract and failed to make any of the monthly payments. This action was instituted on September 7, 1920. On November 3, 1920, and before the trial of this action, plaintiff sold the property to one McCabe and delivered a deed to him. The court below entered judgment for the defendant, from which the plaintiff appeals. It is contended that the judgment is contrary to law and the evidence.

The plaintiff covenanted to furnish an abstract of title after the defendant had made the agreed payments. It would therefore, seem that the failure to furnish an abstract of title before that time was no ground for defendant's repudiation of the contract. Nothing...