Quinlan v. St. John
| Decision Date | 18 October 1921 |
| Docket Number | 958 |
| Parties | QUINLAN v. ST. JOHN |
| Court | Wyoming Supreme Court |
Rehearing Denied February 3, 1922, Reported at: 28 Wyo. 91 at 109.
ERROR to the District Court of Fremont County; HON. CHARLES E WINTER, Judge.
Action by Bessie Quinlan against Edward T. St. John for the recovery of payments and expenditures for improvements made under an agreement between them for the purchase of realty. From a judgment dismissing plaintiff's first cause of action plaintiff brings error.
Affirmed.
J. J Spriggs, for plaintiff in error.
The petition sets forth the text of an installment contract between the parties, under which plaintiff paid $ 2275.00 and being unable to meet one of the installments when due, defendant took up the deed which had been placed in escrow, and deeded the premises to a third party, retaining all payments theretofore received, together with all improvements placed on the premises by plaintiff in error. The amended petition alleges that the inability of plaintiff in error to meet her payments was brought about by interference of defendant in error with tenants occupying the premises, making it impossible for her to meet her payments. Demurrer to the petition was sustained and an amended petition filed. Demurrer was filed to the amended petition which was also sustained and plaintiff refusing to further plead, judgment was entered dismissing said cause of action. Where a vendee has expended money for valuable improvements on the premises vendor is not entitled to recovery even in case of default. The remedy of vendor in case of default is to stand upon the contract and enforce collection of unpaid purchase price, or he may treat the default of vendee as a cause for rescission and restore vendee to statu quo less vendor's equitable damages. Vendor elected to choose the latter remedy and is restricted thereto. (Norris v. Letchworth, 152 S.W. 421.) There is a marked distinction between rescission of the contract by vendor and his right to declare a forfeiture of payments in the absence of an agreement of forfeiture on default. (Black on Rescission, Vol. 1, Sec. 1-7.) Where a contract does not provide for forfeiture as in the present case, the vendor on rescission must return payments received. (Eeidt v. Smith, 134 P. 1057.) A contract may, as in the present case, provide for a rescission for failure to pay but fail to provide a forfeiture in which case vendor must return all payments received. (Staley v. Murphy, 47 Ill. 241.) Time must be made the essence by mutual agreement before any forfeiture for failure to make monthly installments. (Douglas v. Hanbury, 104 P. 1110.) In which case vendee may recover for improvements. (Barrow v. Harter, 130 P. 1051.)
Equity requires a return to statu quo. (Black on Rescission, Vol. 2, Sec. 617.) The party who seeks to rescind must be free from defaults and have clean hands. The petition shows facts which if established would prevent rescission since defendant in error would thereby profit by his own wrong.
V. H. Stone and Dillon & Kimball, for defendant in error.
Upon order sustaining demurrer to first cause of action plaintiff refused to plead further and elected to stand upon that cause of action as plead; judgment was therefore given defendant. The controversy involves an agreement for the purchase of realty which is set out in the petition wherein it is complained that by taking up the deed, defendant rescinded his contract but retained the payments made thereon and the benefit of improvements placed upon the lots. There is no allegation of fraud nor offer to account to defendant for rents or profits and alleges no tender of amount due. 1. It is a settled rule in regard to contracts for sale of real estate that the party who has advanced money, or done an act in part performance of the agreement, and then stopped short and refused to proceed to its ultimate conclusion, the other party being ready and willing to perform, will not be permitted to recover back what has thus been advanced or done. 2. A vendee who has declined to pay the purchase money at the times specified in the contract, has no cause of action, either to recover back money already paid, or for damages for defendant's refusal to go on with the contract. (Lakachowsky v. Utopia Land Co., 110 N.Y.S. 182; Beveridge v. West Side Const. Co., 114 N.Y.S. 521.) 3. The vendor's right to retain the purchase money, where default is made by vendee, is independent of any express clauses in the contract for forfeiture of rights, or for retention of purchase money as liquidated damages, and such express clauses are but declarations in express terms of the legal rights of the parties under such a contract. (Glock v. Colony Co., supra; Skookum Oil Co. v. Thomas, supra.) 4. Time is of the essence of the contract without express stipulation to that effect. (Skookum Oil Co. v. Thomas, supra; Cheney v. Libby, 134 U.S. 68; 10 S.Ct. 498; Milnor v. Willard, 34 Ill. 38.) 5. That the contract of sale does not provide in terms for a forfeiture of payments made is immaterial. (Downey v. Riggs, 102 Ia. 88; 70 N.W. 1091.) 6. Even though stipulations for retention of purchase money and improvements in liquidation of damages is invalid because prohibited by statute, still a defaulting purchaser is not entitled to return of money in the absence of an equitable showing. (Cook-Reynolds Co. v. Chipman, 47 Mont. 289; 133 P. 694; Glock v. Colony Co., supra.) 7. One holding possession under contract of sale, upon default in payments can recover nothing for improvements placed on the property by him. (Barret v. Caldwell, 9 Wall. 290; Seymour v. Cleveland, 9 S. Dak. 94; 68 N.W. 171; Coleman v. Stalnacke, 15 S. Dak. 242; 88 N.W. 107.) 8. Relief to a vendee who has made default in a contract of which time is the essence can be granted only after showing of fraud, mistake, surprise or other ground of purely equitable cognizance. (Glock v. Colony Co., supra; Steinback v. Pettingill, 67 N.J.L. 36; 50 A. 443; Krisky v. Bryan, 115 N.E. 70; Fratt v. Daniels-Jones Co., 57 Mont. 487; 133 P. 700; Cook-Reynolds Co. v. Chipman, supra.) 9. Vendor does not "rescind" by declaring a forfeiture for failure of payment, or by taking possession. (List v. Moore, supra; Oursler v. Thatcher, 152 Cal. 739; 93 P. 1007; Beatty v. Wintrode, supra; Clark v. Anderson Co., 28 Mont. 476; 72 P. 980; Hays v. City of Nashville, 80 F. 641; Anvil Mining Co. v. Hamble, 153 U.S. 540; Black on Rescission, Sec. 1 to 7; Frank v. Bauer, 19 Colo.App. 452; 75 P. 930. 10. In the absence of allegations of fraud, mistake or other ground of equitable jurisdiction, the action is one for money had and received. (Quigley v. King, (Mo. App.) 168 S.W. 285; Krisky v. Bryan, 115 N.E. 70.) And the petition should allege performance, or tender of performance or a breach by defendant. (Leach v. Rowley, 138 Cal. 709; Arnett v. Smith, 11 N. Dak. 55; Goldman v. Willis, 72 N.Y.S. 292; Ziehen v. Smith, 148 N.Y. 558, 560; 42 M. E. 1080; McGibbon v. Schmidt, (Calif.) 155 P. 460; Townsend v. Tufts, 95 Cal. 257; Poheim v. Meyers, 9 Cal.App. 37; 98 P. 65.) It must show either an express promise to re-pay, or allege facts from which the law will imply such a promise. (19 Enc. of Proc. p. 843; Stemmler v. Alsford, 153 N.Y.S. 8; Wheeler v. Mather, 56 Ill. 241; 8 Am. Rep. 683.) 11. If there be a cause of action here, it is not properly stated, and the petition is demurrable, because it does not offer to do equity, that is, to account for the value of the use of the property. (16 Cyc. 235; Overton v. Stevens, 8 Mo. 622; Peacock v. Terry, 9 Ga. 137; Post v. Bank of Utica, 7 Hill (N. Y.) 391; Collins v. City of Detroit, 41 Mich. 128; 1 N.W. 902; Davis v. Gaines, 104 U.S. 386; Buena Vista Co. v. Tuohy, 107 Cal. 243; 40 P. 386.) This is not a case of rescission but one of failure to perform which brought the contract to an end. It is unnecessary that a stipulation making time the essence of the contract should be inserted therein since the intention of the parties is made plain by its terms. A purchaser of real estate under a contract; defaults in payments has no right to recover payments previously made or for improvements made during his occupancy. (Ketchum v. Everton, supra.) Equity will not relieve vendee against forfeiture incurred by a breach of condition precedent. (1 Pom. Eq. J. 3rd Ed. 455; Sanders v. Brock, supra.) The allegation of interference by defendant in error with tenants of plaintiff in error is absolutely insufficient to charge defendant with responsibility for plaintiff's failure to make her payments.
This action is here upon proceedings in error instituted by plaintiff in error, who was plaintiff below, against defendant in error, who was defendant below.
The plaintiff's amended petition in the court below consisted of two alleged causes of action separately stated and numbered. The defendant demurred to the first cause of action set forth in said petition upon the ground that the first cause of action did not state facts sufficient to constitute a...
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Quinlan v. St. John
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