201 P. 149 | Wyo. | 1921
Lead Opinion
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 cause of action. This demurrer was sustained by the trial court. Thereupon, plaintiff refused to further amend her petition and elected to stand upon it, and the court accordingly rendered judgment, dismissing the first cause of action.
. The only question before this court is whether the trial court erred in sustaining the demurrer and dismissing said first cause of action.
The allegations of the first cause of action contained in plaintiff’s amended petition are substantially as follows:
That on December 20th, 1911, plaintiff and defendant entered into an escrow agreement for the purchase of certain lots in Lander, Wyoming, said agreement reading as follows:
“Lander, Wyo., Dec. 20, 1911.
“To Ben Sheldon:—
This envelope contains a deed from Edward T. St. John to Beatrice Bright, which you are requested to hold in escrow upon and under the following conditions, viz: The said Beatrice Bright is to pay to you the sum of $75 on the 9th day of each and every month until the full sum of $3,-900.00 shall be paid, said payment of $75 to commence on the 9th day of January, 1912. When the full sum of $3,900 is paid, you are authorized to deliver said deed to the said Beatrice Bright. In the default of the payment to you of $75.00 each month at the time and in the manner hereinbefore provided, then and in that event you are authorized to deliver said deed to the said Edward T. St. John.
*98 In witness whereof we have hereunto subscribed our names.
Edward T. St. John.
Beatrice Bright.
That the envelope mentioned in the above agreement contained a warranty deed executed by defendant, conveying certain land to plaintiff, which is the deed referred to in the above writing.
That plaintiff met the payments regularly and on time until the sum of $2,250 was paid, and that during said time she placed valuable improvements on.the land to the value of approximately $900.
That on July 9th, 1914, an installment of $75 became due under said escrow agreement, “but through the wrongful acts of defendant in interfering with the tenants of plaintiff and thereby causing them to withhold from plaintiff money due her from said tenants, which with other unavoidable hindrances, plaintiff was unable to meet the installment due July 9, 1914, in the amount of $75 on the exact day it became due and further says that she pleaded with defendant for an extension of a few days’ time in which tb meet said installment, ’ ’ but that defendant refused to extend the time and recalled said deed from escrow and on July 25th, 1914, sold the property in question to another person “and also taking possession of and appropriating to his own use the said improvements so placed on said property by the plaintiff. ’ ’
The petition then alleges that by taking up the deed, defendant “rescinded said escrow agreement,” but refused to and still refuses to return to plaintiff the $2,250 paid on the contract or to reimburse her for the improvements she placed on the land, as he is legally bound to do.
The prayer is for the recovery of the $2,250 paid on the contract, with interest from the dates of the several payments, and for $900, the value of the improvements, with interest from July 25, 1914.
There is no allegation in the petition that the Beatrice Bright, a party to the escrow contract, and Bessie M. Quin-
' The petition alleges that defendant, when he took up the deed, after failure of plaintiff to meet the payment falling due on July 9th, 1914, rescinded the escrow agreement.
There is no allegation in the petition that plaintiff ever tendered the installment due on July 9th, 1914, or ever offered to pay said installment..
The plaintiff in error contends (1) that time was not of the essence of the contract in question; (2) that defendant rescinded the contract and therefore must place the parties in statu quo; (3) that defendant by his own wrongful acts, as alleged in plaintiff’s petition, prevented plaintiff from meeting the installment falling due on July 9th, 1914.
We shall briefly discuss these several contentions, bearing in mind that this is purely a legal action in the nature of an action for money had and received and that the petition is not sufficient, as we shall hereafter show, to invoke the equitable relief of the court.
“When it is said that time is of the essence, the proper meaning of the phrase is that the performance by one party at the time specified in the contract or within the period specified in the contract is essential in order to enable him to require performance from the other party” — (2 Williston on Contracts, 1621.) “Although it seems now to be customary to insert that ‘time shall be of the essence of the contract’ if it is so intended, yet an examination of the cases will show that these words are not essential. Any words that show the intention of the parties to be that time shall be of the essence of the contract, or any clause which provides in unequivocal terms that if the fulfillment is not within a specified time, the contract is to be void will have that effect” — (6 R. C. L. 899. See also note in 104 Am. St. Rep. 268 ef seq.; 39 Cyc. 1369.) The escrow agreement in this case provides that .“In default of the payment to you of $75.00 each month at the time and in the manner hereinbefore provided, then and in that event you are authorized to deliver said deed to Edward T. St. John.” We
Did defendant by recalling the deed from escrow after the default of plaintiff rescind the contract ? We think not. He stood upon the terms of the contract. As was said in the case of Hansbrough v. Peck, 5 Wall. 497, 18 L. Ed. 520, “The position (of the plaintiff) is, that there is no longer a subsisting contract, as an end hasi been put to it by the vendor, and he has in consequence resumed the possession, and claims to hold the estate the same as if -no contract had ever existed, and that in such ease the purchaser upon settled principles of law and equity, is at liberty to recover hack the consideration paid and the value of the improvements. But the difficulty is, that the vendor has only availed himself of a provision of the contract — which entitled him to put an end to it and he restored to the possession. It is a proceeding in affirmance, not in rescission of it, by enforcing a remedy expressly reserved in it. Indeed, without such clause or reservation, the remedy would have been equally available to him. ’ ’ Also, in the case of Glock v. Howard & Wilson Colony Co., 123 Cal. 55 Pac. 713, 43 L. R. A. 199, the court said: “But the vendor, in refusing to accept the tender and to repay the money, is neither violating his contract nor rescinding it, nor treating it as at an end. He is standing squarely upon its terms. ’ ’ In the case at bar, the defendant did exactly what the contract provided he might do and nothing more nor different. He did not rescind the contract. It is true, the plaintiff pleads a rescission and the defendant’s demurrer admits all of the facts properly pleaded. But even if the pleading of a rescission by the plaintiff is the pleading of a fact, the other facts pleaded by plaintiff show there was no rescission.
In an installment contract, such as the one at bar, for the purchase of realty, where time is of the essence, or when the prompt payment of the installments is made a condition precedent, as here, and the vendee defaults and without pleading sufficient facts to bring his case within recognized
The case at bar is distinguishable from the case of Johnson v. McMullen, 3 Wyo. 237, 21 Pac. 701, 4 L. R. A. 670. In that case there was a contract of sale, the deed to be delivered when the notes given for the purchase price were fully paid, and there was no provision for redelivery of the deed to the vendor upon the failure of the vendee to make the payments on time, but even if time was originally of the ess.ence of that, contract, such provision was clearly waived, as shqwn by; the opinion in the case, by the act of
This disposes of all the contentions of the plaintiff in error, except that allegation of the petition “that through the wrongful acts of defendant in interfering with the tenants of plaintiff and thereby causing them to withhold from plaintiff money due her from said tenants, which with other unavoidable hindrances, plaintiff was unable to meet the installment on July 9, 1914, in the amount of $75, on the exact day it became due. ’ ’
Assuming that where, in an action like the one at bar, the petition sufficiently alleges that the defendant by his own wrongful act prevented the plaintiff from meeting an installment when due, the plaintiff may recover back what he has paid in part performance of the contract, we do not think the allegation sufficient. It does not-allege that defendant by his wrongful act prevented the payment. At most, it merely alleges that the act of defendant, coupled with other unavoidable hindrances, prevented the plaintiff from meeting the installment when due. To base a recovery upon such an allegation, it should at least state facts showing that except for the wrongful acts of defendant the plaintiff could have met the payment when due.
Our conclusion, then, is that under the facts in the case at bar, as set forth in the plaintiff’s petition, she is not entitled to recover either the installments paid under the con
Neither do we believe that the petition states facts sufficient to entitle- plaintiff to equitable relief, even assuming, without deciding the point, that under a proper petition, she would be entitled to relief.
In the case of Wheeler v. Mather, 56 Ill. 241, 8 Am. Rep. 638, which was an action in assumpsit for money had and received, involving the same questions as the case at bar, and which was decided upon a rehearing after the case had “received an extended and careful reconsideration,” the court after holding that plaintiff could not recover in such an action for purchase money and improvements placed on the property uses this language: “We do not, however, hold or mean to be understood as holding, that these rules cover the entire subject-matter. There may be eases where a ven-dee, chargeable with a technical default under such a contract, might under particular circumstances be entitled to other relief, as in a ease where he had paid a large portion of the purchase money, made valuable improvements upon the property, and his default was the result of fraud, accident or mistake; or the vendor should attempt to exercise the power of forfeiture in a ease not fairly within its scope; or unfairly and oppressively, with a view of taking an un--due advantage of the vendee by a forfeiture of payments and improvements; and in all other cases falling within the principles by which courts of equity are governed, the vendee may resort to such court to restrain the act of the vendor, if about to be done, or if accomplished, to set it aside, and to have the equities of the parties arising from their relations adjusted according to the circumstances of each case. ’ ’
But assuming that plaintiff might under a proper petition be entitled to relief at the hands of a court of equity, what facts must she set forth in her petition and to what relief would she be entitled?
If entitled to recover at all, it must be upon the ground
What the plaintiff is entitled to recover, if anything, is not the purchase money paid and cost of improvements, but the difference between the purchase money paid, plus the enhanced value of the premises caused by the improvements made by her and properly chargeable against the defendant, and the value of plaintiff’s use of the property. This being true, it would seem to follow inevitably that in order to recover at all, she must show by her petition that there is a difference in her favor and of what it consists. This she has failed to do, so how can it be said that she has stated a cause of action ?
We believe the above observations are fully sustained by the decisions and the rules of pleading as set forth in text books, encyclopedias and adjudicated cases.
In the case .of Lytle v. Scottish American Mrtg. Co., supra, the plaintiff pleaded the facts showing that he was entitled to relief and offering to do equity. In! the course of its opinion the court says: "When the vendee sets up any right (in his pleading), he is also bound to recognize that of the opposite party, and is equally bound to do equity before he can secure relief. He is not entitled to a return of his purchase money until he has allowed, as a deduction therefrom, all damages caused by his breach-one element of which will be the fair rental of the property during the time he occupied it, even up to verdict * * *
“In'the absence of some provision in the contract fixing a different measure of compensation, the amount recoverable for improvements is not what it cost to put them on the property, but the enhanced value of the property, not exceeding the amount expended for the improvements, and from this is to be deducted an amount equivalent to the fair rental value of the premises.” (39 Cyc. 1402.)
“Upon rescission by. the vendor, the purchaser is to be charged with a fair rental value of the land from the time of his acquired possession. ” (39 Cyc. 1403.)
“Asa condition precedent to the action for the recovery back of purchase money paid to the vendor, the purchaser must put the vendor in' statu quo. • Thus where plaintiff seeks to recov.er the purchase money paid by him for land, treating the contract of sale as reseinde'd, he must account for the value of the use thereof while he was in possession.” (39 Cyc. 2051.)
“It (the stating part or premises of the bill in equity) must aver every fact necessary to show his (plaintiff’s) title and right to relief, and such facts cannot be supplied by reference to other parts of the bill. The facts should be stated so distinctly and completely that the' chancellor may, from the face of the bill, see that he has jurisdiction and tell precisely what decree should he rendered, supposing the bill to be true.” (21 C. J. 386.)
In the case of Cornely v. Campbell, (Ore.) 186 Pac. 563, 187 Pac. 1103, which was an action by vendee to recover the value of certain land transferred by him to the vendor in part payment of the purchase price of lands purchased by vendee from the vendor, the contract of purchase having been rescinded, while the question of a sufficient pleading on the part of the vendee was not involved in the case, it appears from the opinion of the court that the vendee, while not offering to account for rents while he occupied the land, showed that the value of such rents was more than compensated by the work expended and improvements made by him upon the land while- he occupiéd it and that therefore (quoting from the complaint) “no accounting for the rents and profits from said lands would be necessary to place the defendant in statu quo.” This ease and many others that we do not cite' show that the counsel conducting the eases for plaintiff deemed it necessary to either account for the rents and profits or show a sufficient excuse for not doing so.
In the case of Woodard v. Williamette Valley Irrigated Land Co., 89 Ore. 10, 173 Pac. 262, the plaintiff vendee in suing for the return of the purchase money tendered possession and a quit-claim deed and offered to account to the defendant vendor for the rents and profits during his occupancy and asked for the difference found due. In its opinion the court says: .“Bach party having consented to’ a
"We are therefore of the opinion that plaintiff’s petition fails to state a cause of action either as an action at law for money had and received or as an action in equity for an accounting and relief from a forfeiture, and it follows that the demurrer to the petition was properly sustained and that the judgment should be affirmed. It is so ordered.
Affirmed.
Rehearing
ON PETITION EOR REHEARING
The judgment of the district court complained of in this ease having been affirmed (201 Pac. 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
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 ease 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.
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 ease 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 pe
In discussing that matter it is said in counsel’s brief that the contract was not set forth in the petition because unnecessary, but was attached to it only as an exhibit, apparently intending thereby that the contract was not a part of the petition and should not have been referred to by the court. We do not suppose that counsel intends to put the court in a false position as to that matter, though that seems to be the effect of the argument, for counsel’s statement as to the relation of the contract to the petition is not entirely correct. The original'petition in the case alleged as to the contract merely that on or about a certain date the plaintiff entered into a written escrow agreement with the defendant, wherein she agreed to purchase from him and he agreed to sell and convey to her the tract of land described, and that for the purpose of effecting said agreement, the defendant made and executed a warranty
Referring to the third contention of plaintiff on the original hearing, that defendant, by his wrongful acts, had prevented plaintiff from paying the installment in which she defaulted, the court said in the opinion that the aver-ments of the amended petition as to the alleged wrongful acts of defendant do not charge that such acts prevented the payment, but that “at most, it merely alleges that the defendant, coupled with other unavoidable hindrances, prevented the plaintiff from meeting the installment when due.” Counsel for plaintiff in error in his present brief, states that the opinion in that respect couples two separate allegations, the wrongful acts of the defendant, and other unavoidable hindrances, into one, and that “they are alleged conjunctively by the word ‘and’ and as so alleged they are independent.” But whether that, if true, would
It is also stated as a ground for rehearing that we erred in assuming that plaintiff was in possession of the premises during the life of the escrow agreement, and it is argued that plaintiff said nothing about that in her brief and that she is not chargeable with anything that defendant’s brief may have said about it. But we said that both parties in presenting the case had assumed that plaintiff was in possession. And we, think that properly stated the situation disclosed by the briefs. Not only did defendant’s brief present the case upon the theory that plaintiff had been in possession until her default, but that was true also, we think, of plaintiff’s brief, for, in stating the questions to be considered, that brief stated as the first question, whiph is quoted above, whether on rescinding the contract the vendor must return all payments made “less any just claim for rent or other proper demands, ’ ’ and, as the second question, whether the vendee is entitled to recover the fair or any value of the improvements “which vendor notv takes to his own use.” And there is no statement in the brief indicating that plaintiff was not or may not have been in possession. If plaintiff had not been in possession the vendor would have had the use of the improvements from the time they were made. But the court did not merely assume that plaintiff was in possession. It also construed the petition as showing the fact, basing such construction upon the averments that plaintiff had placed valuable improvements on the property, and that when defendant recalled the deed from escrow he ‘ ‘ took possession of said
There is absolutely nothing in the case, which for its facts depends upon the averments of the petition, that would permit the court to consider the assertion of counsel in his present brief that the forfeiture suffered through plaintiff’s default is unconscionable and so harsh as to exact everything she had acquired by meager earnings through years of hardship and sacrifice, nor anything in the record upon which to base that assertion. Nor is there anything to show that any amount was forfeited in excess of what would have been a fair return to the defendant for the use of the property under the conditions of the contract. What was said in the former opinion as to the failure of the petition to allege that the amount paid was in excess of the value of the use of the property had reference to the sufficiency of the petition to show a right to equitable relief. The petition in that respect was not, in our opinion, merely indefinite, nor would the suggested allegation amount to the pleading of evidence. We held
Rehearing denied.