Chamberlin v. Ivens

LEE, J. This is an action to recover money paid by respondent to appellant upon the purchase price of lands in a Carey entry, and for an additional amount thereafter paid — 239 — •by him to the construction company upon the purchase price, of the water right appurtenant thereto. The complaint sets out the conditional agreement haec verba, and respondent relies for recovery upon the following provision therein: “That in the event the said vendor fails within one year to secure a patent to said land, then he shall refund back to vendee all money paid him, together with interest thereon at the rate of seven per cent per annum.” The complaint alleges that respondent took possession of the premises on May 9, 1919, the date of the purchase agreement, and was in possession until April 5, 1921, when he notified appellant that he elected to rescind the contract and would proceed no further therewith, and expected a return of the money he had paid. Appellant interposed a general demurrer to the complaint, which was overruled, and he answered over, admitting the execution of the agreement, and also pleaded and relied upon the same, but denied all averments of the complaint that charged him with being in default in the performance of any of its conditions whereby he was liable for a return of the money received on the purchase price. By way of cross-complaint, which he contends should also be considered a part of his answer, he alleges that the word “patent” used in the foregoing quoted paragraph was inserted in the agreement by mistake of the attorney who drew the same, and that the words “final certificate” should have been used in lieu of the word “patent,”' and prayed for a reformation of the contract on the ground of mutual mistake. In the trial of the cause below, in so far as the material averments of the complaint were controverted, it was limited almost entirely to the issue of whether appellant was entitled to have the contract reformed by having the words “final certificate” substituted for the word “patent” in the paragraph referred to. Upon this issue the trial court found against appellant’s contention, and there being a conflict in the evidence, this court will not disturb the findings of the lower court on that issue. — 240 — The court also found that appellant had not secured a patent from the government within a year following the execution of the sale agreement, and that respondent had paid on the purchase price, and to the construction company on the water right and for certain improvements made by him on the premises, the amounts alleged in the complaint, and as a conclusion of law held that respondent was entitled to recover the money so paid, and entered a judgment for the same, from which this appeal is taken. Appellant contends that the complaint does not state facts sufficient to constitute a cause of action, for the reason that it fails to allege that respondent is ready, willing and able to make the deferred payment which fell due at the expiration of the time in which appellant was required to 'secure a patent to the premises, that it fails to allege that ¡respondent had elected to rescind or that he had offered to ¡restore appellant to possession of the premises, that respondent could not state a cause of action to forfeit the. (agreement for conditions broken and a demand for a return iof the money he had paid, without being required to allege land prove that he was ready, willing and able to perform and offering to restore appellant to the status quo, and that therefore the general demurrer to the complaint should have been sustained. Appellant’s pleading designates as “answer” certain admissions, denials and averments, among others: “That he never consented or agreed with plaintiff to secure or to deliver a patent to said lands within one year or within any other period, as is more particularly set forth in the cross-complaint, made a part of defendant’s pleading herein, and herein referred to and made a part hereof.” This is followed by a further affirmative pleading, which begins: “That further answering and by way of cross-complaint and cause of action, defendant alleges, etc.” In the third paragraph of this latter pleading, it is alleged that by the terms of said contract, plaintiff was required to pay upon the balance of the purchase price the sum of.$500 on May 9, 1920, and a like sum on May 9, 1921; that time was — 241 — the essence of this agreement; that respondent asked for and was granted an extension of time to make said first deferred payment, and executed a chattel mortgage on his growing crops to secure the same, and thereafter asked for and was granted an extension of time to make said second deferred payment; that by reason of securing such extensions, he waived his right to forfeit the contract and recover the amount he had paid appellant on the purchase price at the time of the execution of the agreement. As we understand respondent’s position, it is that his action is one at law to recover money had and received, upon the ground that appellant had not kept his part of the agreement above referred to, which required him to secure a patent within a year from the execution of the sale agreement; that this is an independent covenant, upon which respondent can maintain an action for the recovery of the money paid, irrespective of whether he has kept his agreement to make payment of future instalments on the purchase price; that his asking for and obtaining an extension of time in which to make such payments was not a waiver of his right to declare a forfeiture and recover the money he had paid, nor did it operate to estop him from such recovery; and further, that even if the conditions of this agreement are concurrent and reciprocal, the matter of waiver and estoppel is not sufficiently pleaded. The answer, in so far as it attempts to plead a waiver and estoppel in pais against respondent’s right to recover upon the ground of forfeiture, is not a model of good pleading. This affirmative matter appears only in that part of the pleading designated as “further answering and by way of cross-complaint and cause of action,” although the answer, as stated, refers to the cross-complaint. But it is not clear that the pleader intended to make the cross-complaint a part of the answer, otherwise than in relation to his plea for reformation. “The name and character of a pleading must be determined by the facts alleged, and the relief asked by the pleader. The right to recover will not be limited by the name given to the pleading by the pleader, except in such — 242 — cases as the action and conduct of the pleader has misled the adverse party to his prejudice.” (Swank v. Sweetwater Irr. etc. Co., 15 Ida. 353, 98 Pac. 297.) And again, in Bates v. Capital State Bank, 21 Ida. 141, 121 Pac. 561, it is said: “The plaintiff need only state his cause in ordinary and concise language, without regard to the ancient forms of pleadings; and, where this is done, he can be sent out of court only when upon his alleged facts he is not entitled to any relief either at law or in equity.” Ordinarily, where a cause has been tried upon issues fairly tendered by the pleadings, neither party will be permitted after judgment to shift his position and seek relief upon a different theory, to the prejudice of his adversary. We think, however, that this controversy between the parties as to what issues of fact were presented by, the pleadings and tried by the court is not of controlling importance. Both parties plead and rely upon the sale agreement made May 9, 1919, and it is apparent from the terms of that instrument that the obligations to which each of thes'e parties bound himself therein are concurrent and reciprocal, to the extent that neither could forfeit the rights of the other when the party seeking such forfeiture was himself in default. This agreement gave respondent until May 9, 1920, to make the first deferred payment on the purchase price, and it also gave appellant the same time in which to procure a patent. If at the termination of this time respondent intended not to make further payment, but to rescind his agreement to purchase, because of the failure of appellant to procure patent within the stipulated time, which he then had a right to do, he should not have asked for and obtained an extension of time in which to make his payments. (13 C. J. 609, sec. 645; 5 Page on Contracts, sec. 2660; Sheldon v. Dunbar, 200 Ill. 490, 65 N. E. 1095; Caruthers v. McBurney, 3 Sneed (35 Tenn.), 590.) If he elected to rescind and to have a return of his money already paid at the termination of the year or any subsequent time to which he had procured an extension for making payment, he should allege and prove that he was ready, able and willing to perform, and offer to restore ap — 243 — pellant to his estate in the premises. He cannot recover the purchase money already paid without restoring or offering to restore appellant to the status quo, as nearly as might be done. (6 R. C. L., p. 936, sec. 319, under “Contracts”; Conner v. Henderson, 15 Mass. 319, 8 Am. Dec. 103.) If the answer and cross-complaint are insufficient to present this defense now being relied upon, the complaint having failed to allege any of these precedent conditions which would have entitled respondent to recover, and it having been challenged by a general demurrer, such demurrer should have been sustained. This agreement which obligated respondent to make payment of subsequent instalments of the purchase price was coterminous in time with the time given appellant to procure patent. Their respective obligations were concurrent and reciprocal, and neither had a cause of action in forfeiture against the other unless he was first ready, willing and able to perform on his part. (13 C. J. 614, sec. 662; 5 Page on Contracts, sec. 2645, p. 4651; 6 R. C. L., p. 925, sec. 310, under “Contracts”; Norrington v. Wright, 5 Fed. 768; Duncan v. Jeter, 5 Ala. 604, 39 Am. Dec. 342; Reddish v. Smith, 10 Wash. 178, 45 Am. St. 781, 38 Pac. 1003; notes to 50 Am. Dec. 672 and 30 L. R. A. 48.) Counsel for respondent suggest that if this cause should be reversed, to use their words, “respondent would be absolutely stripped and naked to his enemies,” and ask whether this court will lend its sanction to such an inequitable result. It may be pertinent to reply that such a result should not follow a reversal of the cause. Obviously, it would be unconscionable for one party to a contract containing concurrent and reciprocal obligations to obtain any advantage over the other party by reason of such first party’s failure or neglect to perform. Neither party to an agreement of this kind should be placed in any position less favorable than that given him in the original agreement, by reason of the failure or refusal of the adverse party to perform. If appellant has not been in a position to demand payment from respondent because of his inability to secure patent, and appellant has not terminated the agreement, when patent is — 244 — secured appellant cannot perform or offer to perform when his disability is removed, and thereby immediately forfeit the agreement for conditions broken on the part of his adversary, who should be permitted to make the deferred payments upon conditions not less favorable than those given him in the original agreement. This is not making a new contract for the parties, but is requiring them to carry out their agreement as they have modified it. For the reasons stated, the cause is reversed and remanded, with instructions to permit respondent to amend his complaint if he so desires, the cause to be proceeded with in accordance with the views herein expressed. Costs awarded to appellant. Dunn, J., concurs.