Stickney v. Hughes

• Decision Date: 28 March 1904
• Citation: 75 P. 945,12 Wyo. 397
• Parties: STICKNEY v. HUGHES
• Court: Wyoming Supreme Court

75 P. 945

12 Wyo. 397

STICKNEY v. HUGHES

Supreme Court of Wyoming

March 28, 1904

ERROR to the District Court, Albany County, HON. CHARLES W. BRAMEL Judge.

The material facts are stated in the opinion.

Affirmed.

H. V S. Groesbeck, for plaintiff in error.

The petition will not support the judgment, as there can be no cause of action for the amount paid on the note for $ 450. The contract provides for refunding the money paid on the note for $ 550, if either note. The contract is ambiguous and cannot be enforced. It is uncertain and unintelligible, and, therefore, void. (Bish. Contracts, Secs. 117, 316, 390; 2 Pars. Contracts, Sec. 561; 7 Ency. Law (2d Ed.), 116; Balch v. Arnold, 9 Wyo., 17.) The payment of installments after the decision mentioned in the contract waived the right to recover.

No consideration is mentioned in the contract for the note for $ 450. It cannot be the land involved in the contest between Myers and Nelson, for in the contract the price thereof is fixed at $ 1,000, the amount of both notes. The entire contract requires explanation by evidence aliunde. The contract is repugnant to the notes. Parol evidence is admissible to explain a written contract. Failure of consideration was pleaded, and defendant should have been permitted to prove the actual consideration. The pretended agreement that the money should be refunded in case a decision in the land contest was favorable to Myers, one of the contestants, was without consideration to defendant. It does not appear that she had any interest in the result of that litigation, or in the land. Indeed, the contract shows absence of such interest, for it makes provision for the plaintiff securing relinquishments from the contesting parties and delivering same to defendant. If she had been interested in the land or contest, the contract would be void as against public policy.

Even if defendant had received a relinquishment from the successful claimant, it would not have resulted to her benefit, but only to the benefit of the government, and she would not have even secured a preference right of entry; it would have been competent at any time for the government to investigate the circumstances. (Johnson v. Montgomery, 17 L. D., 396; Kitch v. Griffin, id., 180; Bentley v. Bartlett, 15 id., 179, 181; Deming v. Cuthbert, 5 id., 365.) Under no phase of the case could defendant have made such a promise as claimed without violating the rules of the land department.

N. E. Corthell, for defendant in error.

The provision in the contract for refunding money paid on the notes is made upon four possible alternatives, the first of which happened fixing the liability of defendant to refund on the note for $ 450. That note was clearly referred to in the clause in question. The suit is not based upon the note, hence the parties are not concerned with the consideration thereof, but only upon the promise to deliver up the note or refund the money paid on it.

Payment of part of the note after the happening of the event for the refunding was not a waiver of the right to recover the payments made on the note; both notes were secured by a mortgage, to obtain a release of which it was necessary that the notes be paid. The rights of the parties became finally fixed only upon the payment of the other note for $ 550, which was not due until January 1, 1902, and, until paid, plaintiff had no right of action. After giving the notes plaintiff disposed of the mortgaged premises, the purchaser assuming the payment of the notes as part of the purchase price, and in fact making the payments.

The plea of failure of consideration was insufficient and tendered no issuable fact or defense. (2 Chitty's Pl., 341; Puterbaugh's Pl. & Pr., 191, 305; 4 Minor's Inst., 792; Sac Co. v. Hobbs, 72 Ia. 69; Cornelius v. Van Orsdall, 1 Ill., 23; Poole v. Valandingham, id., 47; Bradshaw v. Newman, id., 133; Sims v. Klein, id., 302; Mitchell v. Stinson, 80 Ind. 324; Higgins v. Germain, 1 Mont., 230.) But under a sufficient plea the evidence offered was not admissible. The defendant attempted to show, under the offer, that there were other parol stipulations which the parties failed to incorporate in the contract; and that their contract was different from that as shown by the writing. Such showing could only be made under a plea of mistake of fact, or that the agreement, by reason of mistake, accident or fraud, did not represent the real understanding of the parties. (Bast v. Bank, 101 U.S. 93.)

POTTER, JUSTICE. CORN, C. J., and KNIGHT, J., concur.

OPINION

POTTER, JUSTICE.

The plaintiff in error, Martha E. Stickney, was defendant below in an action brought by Lewallen Hughes, defendant in error here, to recover the sum of four hundred and fifty dollars and interest, alleged to be due upon a contract entered into between the parties on April 2, 1898, at the same time that two notes were executed by Hughes and wife to Mrs. Stickney for $ 450 and $ 550, respectively. The claim asserted by the petition is the promise of Mrs. Stickney to refund any money that may have been paid upon the four hundred and fifty dollar note, upon the happening of a certain event specified in the contract. The happening of that event and the payment of the note in full is alleged and conceded. But there is a dispute as to the construction of the contract.

The material recitals and provisions of the contract upon which the cause of action is based are as follows:

"This memorandum, made this 2d day of April, 1898, between Lewallen Hughes of the first part and Martha E. Stickney of the second part, witnesseth: Whereas, The said Lewallen Hughes and Tillie Hughes, his wife, have this day executed two certain notes, in favor of the party of the second part, copies of which said notes are as follows, to-wit:

"'$ 450.00. LARAMIE, WYOMING, April 2, 1898.

"'For value received, I promise to pay to Martha E. Stickney four hundred and fifty dollars in installments as follows, to-wit On or before January 1st, 1899, one hundred and fifty dollars; on or before January 1st, 1900, one hundred and fifty dollars; on or before January 1st, 1901, one hundred and fifty dollars, and with interest on each installment, after maturity thereof, until paid, at the rate of eight per cent per annum.'

"'$ 550.00. LARAMIE, WYOMING, April 2, 1898.

"'For value received, I promise to pay Martha E. Stickney five hundred and fifty dollars, on or before January 1st, 1902, together with interest thereon from January 1st, 1901, until paid, at the rate of eight per cent per annum.'

"And, whereas, said Lewallen Hughes and Tillie Hughes have executed to said Martha E. Stickney a mortgage for the said sum of one thousand dollars conveying the following described lands, to-wit: Lots numbered one (1), two (2) and six (6); the south half of the northeast quarter (S. 1/2 N.E. 1/4); the southeast quarter (S. E. 1/4), and the east half of the southwest quarter (E. 1/2 S.W. 1/4), all in section numbered six (6), Township 16 N., of Range 75 west, including the water rights pertaining thereto, all situate in Albany County, Wyoming; said mortgage being conditioned upon the performance by said Lewallen Hughes of the conditions, upon his part, of this agreement. And, whereas, the said Lewallen Hughes and the said Martha E. Stickney have made an exchange of lands, upon which there is an estimated difference of five hundred and fifty dollars due the said Martha E. Stickney.

"Now, therefore, it is agreed between the said parties hereto that if the pending contest in the Department of the Interior, between Samuel B. Myers on the one hand and Ole P. Nelson on the other hand, involving the following described lands, to-wit:

"The west half of the southwest quarter (W. 1/2 S.W. 1/4); the northeast quarter of the southwest quarter (N. E. 1/4 S.W. 1/4), and the southwest quarter of the northwest quarter (S. W. 1/4 N.W. 1/4), of section numbered twenty-six (26), in Township 17 N., of Range 75 west, in Albany County, Wyoming.

"Shall be finally decided in favor of the said Myers, then the said party of the first part shall pay said party of the second part the said sum of five hundred and fifty dollars, according to the terms of the note last above described, and in that event the said note, together with the note first above described for four hundred and fifty dollars, shall be delivered up to the said party of the first part and cancelled; and if said note, or any part thereof, shall have been paid by the party of the first part, then the amount so paid shall be refunded to him by the party of the second part.

"Provided, That if the said Lewallen Hughes shall, in the event of the success of said Myers, procure from him and deliver to said Martha E. Stickney a relinquishment of all his right to said lands, then both of said notes shall be cancelled and discharged and delivered up to said Lewallen Hughes, and any amount he may have paid thereon shall be refunded to him.

"And in the event that the said contest shall be finally decided in favor of the said Nelson, and the party of the first part shall fail to procure from him and deliver to the said party of the second part a relinquishment of all his right to said land, then the party of the first part shall pay the whole of said sum of one thousand dollars, according to the terms of said notes; and in the event of the success of the said Nelson, if the party of the first part shall procure and deliver to the said party of the second part a relinquishment, by said Nelson, of all his right to said land, then both of said notes shall be cancelled and discharged and delivered to said party of the first part.

"And in any case, whenever the party of the first party shall have become entitled, under the terms of...