*1 LEET, EDMUND Respondent, and
Plaintiff v. JODER, H.
GLEN Appellant.
Defendant LEET, EDMUND Appellant,
Plaintiff JODER, H. GLEN Respondent.
Defendant (Nos. 2719; April 1956; 2nd, 733) (2d) 295 Pac. *2 appellant For the defendant and in Case No. 2718 respondent and defendant and in Case No. Greenwood,
causes were submitted the briefs Cheyenne, Wyoming, Ferrall & Bloomfield of and oral argument by Mr. James A. Greenwood. *3 respondent
For the in Case No. 2718 appellant No. Case the causes argument were submitted oral briefs and also Wheatland, Wyoming. William G. Watt
OPINION Justice. Parker, appealed
Both defendant and from have *6 appeals in this case. The were discussed presented two in one oral as cases briefs but as in argument. They in our will be considered discussion separate phases same case. appeals may in
The facts as relevant be sum- September 1950, plaintiff, follows: marized as On Leet, dealer, Edmund a real estate wrote Wheatland defendant, enclosing Joder, a letter to H. the fol- Glen lowing instrument:
“Sept. 22, 1950 “TO Edmund Leet
Wheatland, Wyoming listing your your “In consideration of for sale on books undertaking purchaser and described to find for the real estate a herein, hereby exclusive, appoint you my I agent excepting myself, to sale of the real make property described as consisting Farm, (sic) The Joder or less. of 656.84 more acres Range 36, Twp in located Section and also 23, Range County, Twp. Wyo. 68. Platte Section price following for the terms: 832000.00 cash, by balance secured mort- a $5000.00 gage $270000.00 payable or contract of sale thereon $2000.00 yearly years, interest at on a five basis for 5% year. pay the balance due the sixth Purchaser is to irrigation taxes and water all for the assessments year following years, you hereby 1951 on are auth- purchase deposit applied accept a be to to orized my binding contract of sale on price, and execute a to behalf. agent, agree you, my commission pay said a “I by either percent,on or price, if is made the sale a sale
five contract, during yourself this myself the life of good by convey purchaser property to the said and to agree deed, I of encumbrance. also and sufficient clear date, satisfactory title if abstract of to furnish a exchanged by the within property owner said 90 is sold any person days expiration of this contract to after negotiated in re- with whom said Edmund Leet thereof, during property spect life or if to a sale during term of this from sale me is withdrawn contract I five agree pay commission of Edmund Leet percent price. on the sale including Dec. to continue until and “This contract giving 24, unto terminated 1950 and thereafter until agent, you, days my five notice said exclusive writing. H Joder Glen /s/ Cheyenne, Wyo.” part: letter read Plaintiff’s enclosing listing agreement your the sale “I am my correspondent signature. already have advised I property as I Bluff about Denver and also Scotts wanted however get delay, without the sales work started agreement by return mail. I must have *7 “Doctor, place property that I can this for I believe get possible you for all the cash down at Will $32000.00. making you, help in a but terms will a lot sale. only the terms as listed on the form are will note You getting get going. purpose of When I can a the for party, particular circumstances in interested his real change likely require in will a terms. case get Monday, “Likely you before this will this evening. Friday my of time when real es- life I never knew a “In all readily. you I am moved so sure could never do tate give you you place cannot the now. As said better than should, selling you so the venture will the attention turn very good anyway. investment out have been a to listing my me have the return mail.” “Let 27, September 1950, complied, On defendant return- ing signed the instrument to with the follow- ing letter: enclosing original “I am the copy agree- of the sales
ment I be different you payment the you on Wheatland farm which sent to me. realize that probability the terms sale will in all you listed, than have them but I think keep should in mind that the amount of the down higher you should be than If show it. it be- necessary accept only came to down then I 15000.00 very contracting would want to sure parties be agree merely I before could to sell on that I basis. emphasize point any here there will not so be mis- understanding about it. you “I keep duplicate assume intend for me to agreement copy and I future.” my power you in files. More to get hope something you can done in the near Plaintiff, according testimony, to his thereafter adver- property, tised the contacted other estate real dealers possible buyers, and maintained communication January with defendant until 1951 when defendant knowledge began negotiations with culminating one Jacob Sinner sale of the farm February $32,000. him on for Plaintiff sought suit to collect percent his a commission of 5 price the sale on in accordance with the statement listing plus interest and costs. In additional causes sought relating expenses he of action re- $44.52 lease and abstracts for procuring services $75 a loan defendant. Defendant in his answer ad- signed listing, mitted that he February that on 24, 1951, agreement he entered into an with Jacob $32,000, Sinner sell farm for and said that price $20,000. sale was later modified and reduced to (This statement is somewhat clarified Joder’s ad- mission on cross-examination that Sinner assumed and agreed mortgage pay property $9,975 assigned mortgage Washington on some real *8 generally Joder.) cer-
property Defendant denied allegations plaintiff the contentions of but tain and plaintiff’s contradiction the made no substantial outlined; jury trial the in the as above and of claims essentially upon cause, the he his defense relied for any parties the insist- between nonexistence contract ing plaintiff no connection the sale that had negotiations listing, letters, other between that the nature, preliminary parties without were all of a consideration, contractural re- and culminated no parties. lationship between the $1,600. jury plaintiff sum of The found for verdict, judgment has on the defendant based From insisting amounts; appealed, no that he owes arguing appealed, simultaneously that has only $1,600 commission not but defendant owes amount from the date sale interest on that also property.
Case No. specifications defendant’s shall consider first We ground judgment contrary (a) is error on the evidence, contrary law, (b) judgment supported any (c) is not sub- evidence. stantial position in this court is that
Defendant’s there agreement parties, or contract between no everything them was which occurred between negotiations. preliminary He contends nature buyer produce and that evidence Leet did relat- ing improperly to sell the farm was re- to his efforts responds ceived, that there ex- while was an brokerage 21, 1951, fully February effective on clusive for two reasons:
(a) There was no notice of termination. *9 (b) January urged In 1951 defendant to trying continue property. to sell the authorities, Inasmuch as few of the cases cited by counsel for pertain either or defendant directly points issue, to the here it will be well to analogies bear in helpful mind only are insofar they applicable. as are respect, In that no decision de- law, except termines the specific it relates as to the the court. facts before factually
Defendant cites as similar the case at Brimmer, Wyo. 1, bar 452, Stevens v. 35 251 P. 49 919, negotiations A.L.R. preliminary in which were by held the court to be insufficient constitute an agreement. That case deals a situation in which exchange there was an of letters but no instrument being relied as a contract. The fact there no instrument in the Stevens Brimmer case distin- guishes it from the one it at bar and renders of little assistance.
Defendant calls attention to Diamond Cattle Co. v. Clark, Wyo. 265, 857, 867, 912, 2d P. 116 A.L.R. presenting as a situation in which the actions of the parties merely preliminary negotia- were held to be tions. An examination of that case shows that there prospective purchaser a option signing had an for the provision contract a with a for forfeiture of earnest money sign. if opinion he did not portion The in the quoted by interesting: defendant’s brief is “ * * * transaction, The so far as Dobson con- was cerned, probably agreement was more no than an sign purchase, a contract toor forfeit the $100 money. might earnest which This remark option It be described as an for money the earnest was the consideration. epitomizes the court the view which reading a careful suggests, i.e., case it is so different from the instant situation that it wholly is inapplicable unconvincing. McGillicuddy, upon Hartford v.
Defendant relies 431, 860, 862, (N.S.) Maine 68 A. 16 L.R.A. authority rule that “in for the 12 Ann. Cas. agreed there is definite terms of sale absence of might consideration, it seem no contract.” At first prob- application present to the that this case has some lem; analysis find but on we note its facts agent assumpsit by real estate it is an action a claiming price, plaintiff percentage of the sale procured a customer on authorized terms. he Plaintiff-agent granted judgment for his com- mission; appeal, was affirmed on this stating: the court point that the the defendant “The second raised *10 finding jury the that evidence does not sustain the of plaintiff procured purchaser in
the for the land $2,800. The in recent decisions rule as laid down agent requires procure and that the shall in this state willing principal pre- produce to the a customer price purchase pay property pared to for the at the agent. given by principal terms to the and on the the [*] [*] [*] apparent from our short statement of the
As will be case, above, portion quoted care- from and from a the reading nothing opinion, in ful of there is that the listing, about an exclusive such as the instrument case signed by purported to Joder mailed to Leet here situation, dissimilarity Because of in factual be. the resolving importance prob- that of case is little the lem now before us. quotes Restatement,
Defendant Contracts A.L.I. (1932) there 25 and to show that was no con- §§ recovery: tract here and can no for that reason there be intention, promise, or “If from a or manifestation of time, existing per- the at the the from circumstances promise addressed son to whom or manifestation is making person or that knows has reason to know expression pur- it not intend it his does as an of fixed pose given assent, expression he until has a further he has not made an offer.” “Mutual manifestations of assent that in them- are pre- selves sufficient to make not a contract will be operating by vented from so parties mere fact adopt prepare also manifest an intention to thereof; may a written memorial but other facts show merely preliminary the manifestations are ex- pressions as stated 25.” § quoted sections, It will be noted that in these and in following the restatement “comment” each of them (also quoted by defendant), “intention’,, the words “intended,” and “intend” use are used. The of these words indicates to us that A.L.I. committee con- interpretation parties siders an of the of the intention jury the trier of facts —in this es- case be—to sential to any a determination of case. How can else it be decided that “manifestation of intention” and “mutual assent” or manifestations of do do exist? following note We “comment” A.L.I. Restatement, supra, it is said: “It often to draw an exact line between difficult of- negotiations preliminary fers and thereto. language any indicating Besides defer an intent direct contract, formation definiteness nego- opening indefiniteness of the used words considered, usages he must as well as the
tiation business, accompanying and indeed all circumstances.” (Emphasis supplied.) impressed implication areWe this the inten- importance primary tion is of in transactions this *11 nature and that more must be considered than mere places peculiarly words. This the matter within the province jury. essence, finding pre- the of In a the vailing party upon be the must based fact-finder’s interpretation conflicting attitudes, of evidence. The actions, conduct, the the and even the inflections of the properly bearing upon jury’s witnesses would have a a any verdict in of the case this nature. Without benefit reversal information, appellate an court’s this all point be an arbi- jury’s upon would such a verdict the fact- perogative of trary the interference with Faulkner, Wyo., 2d 292 P. finding body. See State citing Wyoming 1050, cases. 1045, numerous expressed, it is light above of our views as In the authorities unnecessary the other probably to discuss subject; general by this presented defendant briefly. cites Defendant mention them we shall but d., dis- Restatement, Agency which 445 c. and A.L.I. § “compensation is conditional contracts which cussess * * * specified services” upon performance listings). we As (as exclusive from differentiated indicated, types contracts two of broker’s these have governing distinguishable; one has and a rule are logical bearing for us on the other. It is little or no Agency 445, Restatement, considering A.L.I. § after subject; authority on the of this to review the balance 449, paragraphs doing, b. we find at in so applicable apparently d., statements some situation: present “ give sale’ of the ‘exclusive contract agent ordinarily
specified property is indicates power. The words use to have the exclusive agency’ sale’ not conclusive is ‘exclusive or ‘exclusive involving interpretation, but, all the in other cases as be considered.” circumstances must agreed subject liability principal for the is “The agreement him that the interpreted in- compensation, cluding it agent, as if the is agent to receive promise accomplishment by another result agency, or an exclusive case of agent, the case of an exclusive principal power. another * * * United States Trust Defendant relies on Rosenfield v. 1210, Co., 323, 122 A.L.R. 290 Mass. 195 N.E. following rule, authority included in for the quotes: portion of he case which *12 239 “Normally, parties contemplate that fact the execu- agreement strong tion of a final ference that the written effects in- by parties do not intend to be bound negotiations agreements earlier until final * * * terms are settled. Said fact does not con- ” * * * clusively establish such intention. sufficient, itself, An excerpt examination of this (a) any rebuttable, to indicate that such inference is (b) important intention is the factor in such a situa tion; depends case, and intention facts. In it was determined there insufficient evidence go jury; to the but it here should be noted that the referring memorandum, court after to a two draft (unsigned), negotiations, said, leases later certain 219, 195 page 326, 122 at page 290 Mass. N.E. at A.L.R. page at 1217: “ * * * subsequent There nois evidence that these negotiations by writing, were evidenced much less that signed
they thereunto by anyone were the defendants or duly authorized. It presents follows that case the Rosenfield so facts litigation different comparison from instant of the two avails little. Defendant cites in this connec- Annot., 1245, 1217, tion 122 A.L.R. entitled “Intention party only,” title, one which its as well as its text, supports say- the other mentioned authorities in ing deciding that “intention” is the vital factor not whether or a contract exists.
Defendant refers to Coal v. Elkhorn-Hazard Co. Kentucky Cir., 67, Corp., pre- River 2d Coal 20 F. as cedent acceptance for the rule that the mailed of the necessarily terms of an offeror does not constitute a case, contract. In that the court refused to construe binding because, according as an offer make a lease construction, letter, discussing to the court’s conditions, was not intended as an offer. terms only bar, Not are the facts unlike those the case at portion opinion citing but quoted, of the 6 R.C.L. Steamship 23, 600, Mississippi p. & Dominion 1063, 248, Swift, 41 Am. St. Maine A.
Co. and “intended” Rep. discusses “intention” being contractual essential to the creation Thus, analysis, the law cited is relation. in final *13 present applicable situation. to the argues petition fails in his Defendant damages prove, allege, trial for to and in the fails to cites as auth- or termination of the breach contract ority C.J.S., 12 Brokers 17: § en- damages is which a broker “The measure of comply fails principal refuses or titled in case the damage which is contract with the broker his compensate actually and will from the breach results exceeding the sustained, con- injury not him for performed. price he has entitled to tract for the services which recover damages, he fails to show he is If damages, mere nothing, only nominal or most breach at any proof that proof of of the contract is damage suffered.” was Jur., Damages 44: 15 Am. actually injury general rule, sus- the loss or “As a paid agreed tained, price paid or be rather than the proper of dam- performance, measure is the on full ages notwithstanding contract, from of a for breach damages may subject such nature matter of ascertainment.” be difficult of Johnson, following 187 v. Patterson cases: Cummings, 363; 213 663, v.
Iowa 174 N.W. Jacob 373, 115; for School Girls Mich. 182 Mt. Ida N.W. 1325; 227, Rood, 482, A.L.R. 74 253 Mich. 235 N.W. 120, Co., Dairy 123 Fla. Poinsettia Products v. Wessel States, 216; Perry 306, v. United A.L.R. 166 So. 104 912, 95 A.L.R. 79 L. Ed. U. S. S. Ct. 1335. by the cited out borne
The rules thus stated relating to of the law are statements cases correct However, damages contract. for of a broker’s breach philosophy has been of in this case that there no breach contract but rather a ful- fillment, up point payment. to the Plaintiff did not proceed damages; undertake to with the suit and if damage only him, avenue be the route available to We, therefore, then he analyze must fail. the situation remedy to determine whether or not the exclusive plaintiff’s damages in the position one is a for suit may whether he sue on contract. general philosophy point
The on this courts presented plaintiff’s is indicated in the two citations Jur., brief from 8 Am. Brokers and 209: §§ right against “A of action arises in favor of the broker principal duty wherever the latter violates his Thus, may the former. he maintain an action com- pensation, of scind. damages wrongful and for for a revocation authority broker’s if the broker elects to re- authority wrongfully may “A broker whose revoked pursue sider his contract of may either of He two courses conduct. con- employment as rescinded and sue damages, for recovery event he which is entitled to his have *14 the of include value the services he has al- ready rendered, disbursements, prospec- his and such profits tive as he can establish would have been his revocation; may for such but his contract as or he refuse consider rescinded, proceeds he and if and suc- performing requires in ceeds that which his contract perform, employer he shall that his for the is liable ” * ** agreed compensation. authority This a indicates in situation this that open nature there are two courses conduct the subject specifically broker. The is discussed more in C.J.S., Brokers 102: pay contract “Under a commission on a a sale of by broker, during land the the owner or another agency, remedy the broker’s the on broker’s the owner’s property agency sale of the before termination the agreed commission, is an action for the and not for ** * breach of contract. The authority cases cited under Note 90 of this Key-Number Brokers 79 of
some others found under give Digest System specific illustration of the in West Longenberger, example, is meant. Blank v. what For 97, 99, (later reversed N.Y.S. 132 Misc. point), by a broker for another a suit on discusses agency to sell real under exclusive commission an case, in the the At of the evidence estate. the close complaint the moved the on defendant to dismiss ground mistaken his cause of that the had brought: in he action that “ ** * for commissions the action recover right earned, procures only when such exists and, purchaser property, the in the the bar, having procured pur- case at broker defendant, chaser, claim, against only any, if his damages be for for of con- would tract sustained breach .” response, the In court said: “ * * * brought properly as one for action is * * * , commissions, and an action for breach of lie, herein under the circum- contract does not of this case.” stances Freeman, Similarly, Kenney in case of 236 Mo. 532, 534, App. 260, a suit real 151 S. W. 2d estate provided on contract which brokers for commission within six the event the real estate was sold months from date of the owner would contract selling pay price, a commission on the brokers theory being they plaintiffs’ recover should be- agents. they appointed were seller’s exclusive cause plaintiffs for the trial court There was verdict; reviewing an instructed court affirming the case inter alia: said plaintiffs’ “It noted that suit is based will be damages question the contract and is not a suit general in 12 thereof. The rule is stated for breach *15 220, ‘Broker’, 94, page fol- under title as C.J.S. § proper lows: ‘An action on the contract contract is where payment expressly provides com- 243 any by plain- mission tiff on sale whether made or defendant.’ above, it From the is clear that was entitled bring contract; petition ap- a suit on pears to be sufficient to state cause of 2 action. See Pleading (1926), Bancroft’s 1066. Code § objections to as- Defendant’s instructions are not signed specifications may of error and raised be Jur., Appeal 3 at this time. Am. Error 695. See § Curtis, 402, 418, Wyo. 372, 286 P. Slane P. 12, 13, 906; Marcante, Wyo. 81, 69 A.L.R. Hein v. 940, 113 P. 2d 949. regarding objections
The discussion of defendant questions only cursory various asked trial at is presents indicating no cases or authorities the reasons questions improper. say such were Suffice objections philosophy are in line with such defendant’s the case and must stand or fall with the court’s ruling subject preliminary on the of the effect of the negotiations listing. and exclusive argument made in the oral
Casual reference was question regarding no inde- raised briefs but listing provision: because of the finiteness including “This contract to continue until and 1950 and Dec. by giving thereafter until unto terminated agent, you, my days said exclusive five notice writ- ing.” agreements authorities indicate so termin- The able, especially employment, contracts of are suffi- C.J.S., ciently 503; definite. See 17 Contracts 12 Am. § Jur., 68; (rev. on Contracts 1 Williston § Contracts 38; 1936) (rev. ed. Williston Contracts ed. § 1936) 1027A. stated,
For the reasons above affirmed.
Affirmed.
Case No. complains of specifications of error in his Plaintiff overruling verdict (a) motion for a directed of his overruling interest), (b) the of his motion (including (notwithstanding judgment interest for for judgment interest), (c) the be- jury’s allow failure to interest, omitting (d) ing contrary and to law in omitting being in- contrary law in jury’s verdict terest. primarily specifications relate to the same all
These interest, matter, i.e., and need not disallowance of be separately. discussed 39-1104, upon, quotes, bases his claim §
Plaintiff W.C.S., 1945: writing, money any in the instrument due on “On rate, specifying the on settle- contract absence of day balance shall be an account from ment of agreed upon; and retained another, money received the use on consent, express or without the owner’s thereof, money loan- receipt implied, from the delay 'pay- due, by unreasonable and withheld
ed or (7) ment, be at the rate seven interest shall allowed in- per per cent annum. Unsettled accounts shall bear thirty (30) days from the date of the last after terest supplied by plaintiff.) (Emphasis thereof.” item solely the words that Inasmuch as relies urges point ap- emphasized in his no other he has peal, our attention to the manner we shall direct delay” and should have which the “unreasonable been determined. argues court, pro- that the trial under the
Plaintiff W.C.S., 1945, interpreted 3-3605, visions of Co., Wyo. 114, 123, 124, Realty Hefferin v. Scott 194, 196, request- authority had to allow the 254 P. 2d notwithstanding judgment of a ed interest means verdict. therefore check instant case We its status under the criteria established determine Realty Co., Hefferin v. Blume in Scott Chief Justice supra, quoted approval following when he rule: “ ‘ ** * to render non obstante vere- dicto, justified trespassing the court is not on the province jury judges questions be the of all ** * of fact in the case us, In the case now before evidence an indicates agreement entire lack of parties regard- between the ing liability payment defendant’s for of a commission incidentally —and payment. the time of Both these questions presented were jury decision, to the *17 jury the (a) plaintiff decided that entitled to a (b) commission and he was not entitled to the interest. The question authorities are voluminous on the right the trial judg- court’s to include interest in a despite ment jury’s the or failure refusal to it allow Judgments C.J., in the verdict. 33 § states: “ * * * plaintiff If is entitled to interest his demand, by jury claim or it must be found the and verdict; in jury included terest their if the do not in- allow verdict, it, in their the court cannot allow give judgment it is error to in for interest addition ” * * * to the amount of verdict. the brought C.J.S., Judg- This matter is forward in 49 58, provides: ments which § general supported “As a rule the must be
by, with thereof, to, verdict, decision, findings and conform the or respect t othe allowance of interest the amount jury and if the do not allow in their interest ” * * * the court cannot allow verdict it. subject 2 practice On this Bancroft’s Code and Rem- 1569, provides (1927) edies inter § alia: “ * * * may a court not correct a verdict in re- substance, spect of a matter of or make an amendment agreed probably by would not have been requisite jurors. number Jur., comprehensive also 53 A See Am. Trial 1096. problem, including discussion of the interest a classi- precedent, fication of cases have which been cited is as 1150, Annot., which discusses the in 72 A.L.R. found (a) jury interest has awarded in which situation computation, (b) interest to which omitted without entitled, (c) passed upon legally is right to have interest. dealing interesting cases with this of the most
One Printing Industry Banks, of Portland v. is matter seeking 596, was an action 46 P. 2d 600. This Or. supplies. In the trial of liable to hold defendants jury there was no reference to interest the case to a any instruction, not mention it. and the verdict did Nevertheless, the item the trial court included judgment. supreme pointed The court interest reversing case, Oregon (similar out, statute W.C.S., required jury 3-2421, 1945) which to § recovery quoted Fiore amount assess the 144, 145, Ladd, approval 46 P. Or. it: of the case before determinative jury tration of however erroneous judgment trial, jury to a verdict which were able of a as both been regarded willing the act of the court verdict is When, therefore, pose refused a “ ‘ compromise, plaintiff’s * * [*] jury discharged which and intention questions discharged, [citing to render and set thereon, assent to. the expresses find agree it many they have right aside but it is manifest importance after the is are the amount of the one they on a verdict or it cases.] of binding upon the verdict *18 court which * only the may recover, their some set it amending the been in the first instance ** verdict jury be. It This of such a rule. The made manner intention, included has been returned aside, powerless ” province, and the for has case the must is received unwillingly $800, probably and recovery, provided been verdict this court, interest; affords they either enter a findings upon grant but to amend wholly they unless the expressly were un- an illus- and the as well but a new agree duty, have jury pur- law. dis- it, as Oregon philosophy practical the court of This of is a dignifies indicating jury by the both nature and its integral legal system importance part as an of our reaching mutually satisfactory its difficulties a ver- a,re, moreover, fully consistent dict. The court’s views following with the eminent authorities which indicate judgments proper the correlation of verdicts to money actions: judgment verdict, jury if the “The must follow the money, specified the
have found a verdict for sum of a amount; judgment any greater court cannot render wrong, remedy if verdict is the new trial. the Judgments (2d Ed.) 1 Black 142. on § the “An allowance of interest must be findings making supported by provision or verdict affording requisite or and therefor the for the com- data putation allowance, except may as statute it- provide self for the inclusion interest.” Freeman Judgments Ed.) (5th on 88. § is, course, necessary It that each case be deter- evidence; upon specific presented by mined facts points up clearly but the situation at bar a distinction appearing authorities, i.e., in most of the above inas- power much court’s to add interest to the verdict jury grant is based the assumed failure of the to which he is entitled as a matter law, (a) cannot add court interest when it was damages part (b) impossible it is to ascer- jury tain whether has included interest in the unliquidated award an contract or claim. See 53 1096; Jur., Annot., Am. Trial 72 A.L.R. 1159. question right think We of Plaintiff Leet’s question to interest awas of fact rather than a matter was, therefore, properly to, of law. It submitted by, jury; answered and since no trial new asked, judgment. the verdict should control the
Affirmed. J., J., C. concur.
Blume, Harnsberger, *19 PETITION FOR REHEARING
ON rehearing case, petition was filed this A opinion on 1956. denied without June