Quinlan v. St. John

Decision Date03 February 1922
Docket Number958
Citation203 P. 1088,28 Wyo. 91
PartiesQUINLAN v. ST. JOHN
CourtWyoming Supreme Court

Error to District Court, Fremont County; Charles E. Winter, Judge.

28 Wyo. 91 at 109.

Original Opinion of October 18, 1921, Reported at: 28 Wyo. 91.

Rehearing denied.

POTTER Chief Justice. BLUME, Justice, and TIDBALL, District Judge concur.

OPINION

ON PETITION FOR REHEARING

POTTER Chief Justice.

The judgment of the district court complained of in this case having been affirmed (201 P. 149), the plaintiff in error has filed a petition for rehearing. No material point is presented that was not considered in the former opinion, but the grounds stated for rehearing are that the court erred in the conclusions and the reasons therefor stated in that opinion. The case was given a very careful and thorough consideration on the former hearing, and, although it was then submitted upon the briefs without oral argument, we reached the conclusion stated only after an exhaustive examination of the authorities upon the questions presented; and after a candid and careful consideration of the brief in support of the petition for rehearing we remain convinced that the cause was correctly decided, and are of the opinion that a rehearing could serve no useful purpose. Nor do we think it necessary to again discuss the several questions considered in the former opinion, for our views are, we think, clearly expressed therein.

But counsel for plaintiff in error, in his present brief, fails to distinguish between what was held or stated in the former opinion upon the question of the right of plaintiff to recover the money paid on the theory that the defendant had rescinded the contract, and what was held and stated as to the sufficiency of the amended petition to entitle the plaintiff to relief in equity against a forfeiture; and in some respects the criticisms of the statements in the former opinion by the petition for rehearing and the brief are not justified by the facts or misconstrue what was intended by the court. It seems proper, therefore, to explain the court's position and its understanding of the record in those particulars.

As shown by the former opinion, the theory of the amended petition is and the contention of counsel for plaintiff in error at the former hearing was that the defendant, as vendor, rescinded the contract by recalling the deed from escrow upon the failure of the plaintiff, as vendee, to pay a certain installment of the agreed purchase price when it became due under the contract. And we held that the act of the vendor in so recalling the deed, in view of the provisions of the contract, did not amount to a rescission and therefore furnished no ground for the recovery of the money paid in an action at law on the theory that because of his rescission of the contract it became the defendant's duty to refund the money paid, and pay for improvements placed upon the property by the vendee. And the controlling principle upon that theory of the case under our interpretation of the contract was stated substantially as follows: That in an installment contract for the sale of real estate, where time is of the essence, or where the prompt payment of the installments is made a condition precedent, and the vendee defaults, and, without pleading sufficient facts to bring his case within recognized rules of equitable jurisprudence, sues at law to recover the money paid, he cannot recover the purchase money paid, nor the improvements placed upon the property; the court having held that in an action at law, involving no equitable grounds for relief, time must be considered as of the essence of the contract in question.

Following a statement of the averments of the amended petition, upon which the judgment had been rendered after sustaining a demurrer to that petition and the refusal of plaintiff to further plead, and before proceeding to discuss the case upon the contentions of plaintiff in error, reference was made in the former opinion to the absence from the petition of any averment as to certain facts and as to other facts the absence of a direct or definite allegation, and some of the statements there made are criticized by the petition for rehearing and the brief in support thereof as requiring unnecessary allegations in the petition or as erroneously construing it. With the exception of what was said in that part of the opinion referring to the allegations as to the cause of plaintiff's default in payment, the statements criticized were not intended as controlling the decision of the cause upon the theory of a rescission of the contract by the vendor, as we think clearly appears from the opinion showing distinctly the points upon which the case upon that theory was decided. But for the most part such statements referred to matters to be considered upon the question of the sufficiency of the petition to show a right to equitable relief, which, although not suggested in the brief of plaintiff in error, was intended to be and was discussed after disposing of the contentions of plaintiff in error stated in the opinion.

Thus, one of such statements now criticized is that there is no allegation that plaintiff had ever tendered or offered to pay the installment due on July 9, 1914. That was not stated as a ground for the decision upon either of the questions considered in the opinion, and the fact was not again referred to in the opinion. The absence of such an allegation was stated for the purpose merely of eliminating from the case any question of tender or offer to pay by showing that through the absence of averment it was not involved. It did not misstate a fact and is no ground for rehearing or complaint. Again, the plaintiff in error complains of the statement in said former opinion that the amended petition contains no allegation that the person who had signed the contract as vendee and the plaintiff are one and the same person, and it is said in the brief that such statement was an unjust criticism of the petition. That was not stated as a ground for the court's conclusion that the demurrer had been properly sustained, but, instead of being adverse to the plaintiff, the statement was decidedly in her favor, for we said in connection with it that the defendant in his brief had virtually conceded the fact that the plaintiff was the person named in the contract as vendee, and it is apparent from the opinion that the court assumed that to be the fact. It ought to be apparent to counsel that the statement was not made for the purpose of criticizing the petition but to explain the court's position in assuming the plaintiff to be the vendee who had signed the contract, in the absence of any direct allegation of her relation to it other than the general averment that she had made that contract with the defendant; the court having quoted the entire contract, showing a dissimilarity between the name of the vendee mentioned therein and the name of the plaintiff in this action.

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1 cases
  • Melfi v. Goodman
    • United States
    • New Mexico Supreme Court
    • December 30, 1963
    ...ambiguous. The language of the contract requires the same result. Quinlan v. St. John, 28 Wyo. 91, 201 P. 149, rehearing denied, 28 Wyo. 91, 203 P. 1088; also cases in note, 31 A.L.R.2d 8, 45. Although we are in accord with appellant that forfeitures are not favored, Stamm v. Buchanan, 55 N......

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