Simmons v. Harris

• Decision Date: 16 December 1924
• Docket Number: Case Number: 14442
• Citation: 1924 OK 1137,108 Okla. 189,235 P. 508
• Parties: SIMMONS v. HARRIS.
• Court: Oklahoma Supreme Court

1924 OK 1137

235 P. 508

108 Okla. 189

SIMMONS v. HARRIS.

Case Number: 14442

Supreme Court of Oklahoma

Decided: December 16, 1924

Syllabus

¶0 1. Appeal and Error -- Recall of Mandate After Filing Below.

Although a mandate has been issued by this court and filed in the lower court, this court has jurisdiction to recall the mandate and reconsider the case where the mandate was issued as the result of fraud, mistake, or unavoidable casualty.

2. Same--Reinstatement of Appeal -- Withdrawal of Attorney as "Unavoidable Casualty."

The withdrawal of an attorney from a case in the Supreme Court, without notice thereof to his client, by reason of which the case is dismissed for want of prosecution constitutes an unavoidable casualty on account of which the appeal may be reinstated.

3. Appeal and Error -- Record -- Opening Statement as Admission.

An opening statement of counsel is not a part of the record in a cause on appeal unless made so by bill of exceptions or other appropriate proceeding; and remarks made by counsel in such opening statement do not relieve his adversary from establishing his case by legal evidence unless it was expressly intended that such remarks should constitute solemn admissions or that they were made for the purpose of dispensing with the formal proof of some fact.

4. Same.

Where the parties to an action fail to have the opening statement of counsel taken down by the court reporter, and where the attorneys who tried the cause in the lower court stipulate that the case-made which omits the opening statements contains all the evidence and proceedings, and where the trial judge certifies that the case-made contains all the evidence introduced and proceedings upon the trial, it is apparent that said opening statements were not intended to be solemn admissions or to be relied upon as a part of the evidence.

5. Vendor and Purchaser -- Rescission of Contract--Equity Jurisdiction.

Where the entire controversy turns upon the question of whether a contract for the sale of real estate should be rescinded and canceled or whether the contractual right to elect to rescind has been lawfully exercised, the right to the possession of the property is a mere incident to the action and not the main issue; possession following, as a matter of course, a judgment rescinding and canceling the contract under which the party obtained possession thereof. Such an action is therefore one of equitable cognizance and not an action at law.

6. Vendor and Purchaser--Breach by Vendee -- Remedies of Vendor -- Statutory Procedure.

A vendor under a contract for the sale of real estate, upon default of the vendee, has a choice of remedies. Regardless of which remedy he elects to adopt, he must conform to the established rules of pleading and proof prescribed by the statute and decisions of this state for the particular remedy elected.

7. Same--Default in Payments--Waiver of Right to Rescind.

Where a vendor enters into a contract for the sale of real estate, giving him a right to declare the contract void on account of default in payments, and the vendee goes into possession of the property and makes default in payments on the purchase price, the vendor waives his privilege to rescind by conduct after default inconsistent with an intention to rescind the contract.

8. Same--Rescission After Waiver of Right--Necessity for Notice to Vendee.

Where the vendor, after default, has waived his option to rescind, before he can thereafter declare a forfeiture on account of such default, he must give the vendee timely notice of his intention to rescind, and fix a certain and reasonable time within which the vendee is required to perform his part of the contract; after such notice, the vendee may avoid the rescission by complying, before the date fixed, with the terms of his contract.

9. Same -- Restoration by Vendor as Prerequisite to Rescission.

A party claiming a rescission of a contract for the sale of real estate, where the vendee is in possession and has paid a part of the purchase price, must restore or offer to restore everything of value which he has received under said contract from the other party, including all outstanding and unpaid notes. Failure to prove restoration is fatal to his cause of action.

Davis & Patterson and McPherren & Wilson, for plaintiff in error.

Everest, Vaught & Brewer, Cutlip & Horsley, and Hunter L. Johnson, for defendant in error.

MASON, J.

¶1 This action was commenced in the district court of Seminole county, Okla., by V. V. Harris, as plaintiff, against W. H. Simmons, as defendant. The parties will be referred to in this opinion as they appeared in the trial court. On October 8, 1919, the plaintiff entered into a contract for the sale of real estate to defendant for the sum of $ 6,400 payable in installments, $ 800 being due in 1919, $ 700 on October 1, 1920, and the remainder falling due in installments of $ 700 each succeeding year, beginning December 1, 1921. The petition sets forth two causes of action. The first alleges the execution of the contract, a copy of which is annexed, and the default of the defendant in failing to pay the $ 700 installment due on October 1, 1920, and the 1920 taxes. The following provision is the only part of the contract material to a determination of this case:

"Third. That any failure on the part of the party of the second part to faithfully keep and perform each and all of the above conditions, covenants and agreements, or to make any of the payments at the time and in the manner above specified, shall render this contract void at the option of said party of the first part, and he may retain all payments made as agreed liquidated damages, and recover immediate possession of said premises."

The plaintiff asserts that he elects to rescind the contract as shown by the following language of the petition:

"Plaintiff states that by reason of the defendant's failure to keep the conditions of said contract, he is entitled to the immediate possession of said land and he elects to rescind said contract and to take possession of said land."

The prayer of the first cause of action is as follows:

"Wherefore, plaintiff prays judgment that the contract aforesaid be canceled, and that the plaintiff be decreed and adjudged to be the owner of said land in fee simple; that plaintiff have judgment for the possession of said land and for the sum of $ 700 damages for the breach of said contract, for costs and other proper relief at law or in equity."

The second cause of action adopts the allegations of the first and prays judgment for the sum of $ 600 for rents and profits for the year 1920. Defendant filed a general demurrer, which was overruled and exceptions were duly saved. Thereupon the defendant filed an answer admitting default in the payments of the installments and taxes, but alleging that the plaintiff had waived his right to forfeit his contract and had extended the time of payment and performance of the contract until the 1st day of October, 1922. The court made findings of fact and conclusions of law in favor of the plaintiff, to which the defendant duly excepted. The judgment rendered by the court decrees a cancellation of the contract and awards the plaintiff the premises, judgment for the sum of $ 250 as the rental value during 1922, and, further, gives the plaintiff, as liquidated damages for the use of the premises, all payments made by the defendant on the purchase price, aggregating over $ 1,400. Defendant filed motion for new trial in due time assigning as grounds therefor that the findings of fact conclusions of law and judgment were not sustained by sufficient evidence and were contrary to law and other grounds. This motion was overruled and defendant filed his appeal. At the outset we are met with a motion of plaintiff to dismiss the appeal. It appears that one A. M. Fowler was the attorney for the defendant in the lower court and caused the appeal to be filed herein, but refused to prepare briefs. The cause was dismissed by this court in December, 1923, for want of prosecution. In February, 1924, the defendant for the first time learned of the dismissal and promptly filed a motion to reinstate the appeal, which was granted by this court. Most of the questions presented by plaintiff's motion to dismiss were considered by the court when it granted the defendant's motion to reinstate the appeal. We have, however, again carefully considered the grounds alleged in the motion to dismiss. In support of the plaintiff's response to the defendant's original motion to reinstate, we find an affidavit of A. M. Fowler, the attorney for defendant, wherein he states that in July, 1923, he notified defendant by letter that briefs must be filed within 40 days and asked for money to pay for the briefs and the fee due him; that between the 1st and 10th day of September he received a check for $ 25, which sum he kept; that he refused to file the briefs because his fee was not paid, and that he received no other sums from the defendant and had nothing further to do with the case. He does not state that he notified the defendant of his intention to withdraw from the case or of his refusal to file said briefs. The defendant in response to the motion to dismiss has set forth several affidavits and has presented original letters and communications from A. M. Fowler. From an examination thereof, we find that under date of July 26, 1923, Fowler wrote his client asking for $ 25 to pay for printing briefs, but made no mention of fee. Neither did he intimate any intention to withdraw from the case. Under date of August 4th following he acknowledged the payment of $ 25, specifying in his signed receipt that the money had been paid him for printing of briefs in this particular case. It clearly appears from the affidavit of Fowler himself and the response filed by the defendant that Fowler gave no notice to the defendant that the case would not be prepared for presentation to this court. Mr....