O'Brien v. Hunt

464 P.2d 306, 1970 Wyo. LEXIS 151

• Court: Wyoming Supreme Court
• Decided: January 28, 1970
• Docket: No. 3760
• Status: Published

Opinions

Mr. Justice PARKER

delivered the opinion of the court.

Vernon A. O’Brien sued the Hunts for the return of $15,000, which he had paid on a July 1967 sales contract for the sellers’ interest in a Concession Lease Agreement between the Parks Commission of Wyoming and George Hunt, together with a cafe building, motel, trailer park, boats, and other equipment used by the Hunts in the operation of the Glendo Marina. Plaintiff brought his action in three counts, alleging that (a) there was failure of a condition precedent, that is, of securing the State’s consent to the assignment of the concession; (b) the contract had been induced by fraud; and (c) the forfeiture provision was unconscionable.¹ Defendants answered, asserting among other things that plaintiff had not requested the State’s approval of the assignment but instead had, after taking possession of the Glendo Marina and the purchased equipment, operated the concession some six weeks during July, August, and early September, when he had ceased operation, and that he had thereafter appeared before the Wyoming Recreation Commission (formerly the Parks Commission), urging that body to disapprove the assignment.

When the case was tried, the defendant at the conclusion of plaintiff’s evidence moved for a judgment and the request was granted, resulting in this appeal. The evidence developed at the trial disclosed that the property at the marina together with the sellers’ interest in the concession was sold by defendants to plaintiff for $55,000, payable $15,000 before possession, with the balance in 240 equal monthly amortized payments. Mr. O’Brien paid the $15,000, entered into possession on July 18, and operated the business during the remainder of July, through August (making one payment for that month), and for four days in September, at which time he “turned it back.” According to Mr. O'Brien around August 20 "I could see that I wasn’t making any money and I told Mr. Hunt this added with also other problems and I — without saying how many problems I had I offered to turn it back to him for ten thousand and him keep the other five thousand and he wasn’t interested.” He did not at any time ask the Wyoming Recreation Commission for consent or approval of the assignment, but subsequent to the time he “turned it back,” he and his attorney appeared before the commission, and both asked it not to approve the assignment of the concession. They first appeared before the commission alone, but that body postponed the matter until Mr. Hunt could also be present.

According to a letter from the director of the commission, the minutes of the meeting stated:

Mr. Richard Smyth, attorney for Mr. Vernon O’Brien, was introduced. Mr. Smyth related the circumstances of the problem between Mr. O’Brien and Mr. Hunt and asked that the Commission not grant the Assignment of Lease from Mr. Hunt assigning the concession to Mr. O’Brien. No action was taken until Mr. Hunt’s attorney could be heard.’ ”

After reciting that Mr. Hunt and his attorney appeared, the minutes continued:

“ * * It was regularly moved by Mrs. Robert Frisby, seconded by Mr. Marvin Harshman that the Attorney General’s opinion be accepted on the controversy between Mr. Hunt and Mr. O’Brien. Motion carried unanimously.

“ ‘The Attorney General’s opinion is as follows: “Because the Wyoming Recreation Commission technically is only involved with Mr. Hunt due to his concession lease, the Commission expects Mr. Hunt to operate the Glendo concession in compliance with this lease. If the concession is not operated in compliance with this lease, the terms of this lease will be deemed violated and the lease cancelled.

“ ‘ “The Wyoming Recreation Commission is not in a position to approve or disapprove a contract in which the Commission had not consented to be a party, had no knowledge of, and which is being disputed even before being submitted to the Commission. Such a contract is of no concern of the Commission and must stand on its own merits between the two contracting parties.

“ ‘ “Without a valid undisputed contract for assignment, this Commission has nothing to make a decision on.” ’ ”

The core of the appeal is the question presented by plaintiff’s first point, Should the court require a seller to return all of the moneys paid by the purchaser because a condition precedent in the contract was not fulfilled? The mentioned condition precedent was:

“CONDITION PRECEDENT TO LIABILITY. In the event that the State of Wyoming, for any reason, refuses to permit the purchaser to operate the premises under the terms of this agreement or refuses to accept the purchaser as an assignee of the said Concession Lease Agreement, then this agreement shall be null, void and of no further effect, the sellers shall re-pay [sic] purchasers all moneys paid to date of the refusal and the purchaser shall return unto the sellers all of the property herein or its equivalent.”

In his argument here, plaintiff emphasizes the words “for any reason” and insists a meeting of a condition precedent is an absolute prerequisite to defendants’ retaining the down payment. As a basis for that argument, he quotes 6 Corbin, Contracts, § 1368, p. 521 (1962):

“In cases like these, the plaintiff [seller] can, not get specific performance and has no remedy in damages. He loses, without recourse, the benefits and profits of the bargain; but he has a right to the restoration of whatever the defendant may have received from him under the contract. * * * If the defendant has received land or some special type of goods, the plaintiff may have a right of specific restitution. ⅝ ⅛ j|c If

To a similar effect he cites Rossignol v. Morgan & Jacobs, Inc., 191 La. 462, 185 So. 883; Ramey v. Gent, 103 Colo. 423, 86 P.2d 1083. He fails, however, to address himself to circumstances existing in the present case, i. e., his appearance with counsel before the commission and the request it not grant the assignment of the concession when prior thereto he had told Mr. Hunt he was not going to make any more payments and had turned back the business to him.

In Thatcher v. Darr, 27 Wyo. 452, 199 P. 938, 947, 16 A.L.R. 1442, this court said that he who himself prevents the happening of performance of a condition precedent upon which his liability by the terms of a contract is made to depend cannot avail himself of his own wrong and relieve himself from his responsibility to the obligee and shall not avail himself, to avoid his liability, of a nonperformance of such condition precedent, which he has himself occasioned against the consent of the obligee.² It would be difficult to imagine a situation where the evidence would more positively require the application of this rule than the one presented in the instant litigation. Accordingly, plaintiff is in no position to escape liability from the failure of performance.

As a further ground of reversal, plaintiff contends that a court of equity will not allow plaintiff to forfeit 25 percent of the total price and that defendants have been unjustly enriched. However, his authorities in this aspect are inapposite, pertaining entirely to enforcement of, rather than relief from, claimed forfeiture and hence totally lack cogency. He also suggests that defendants’ acceptance of the property when possession was returned to them may even constitute a rescission of the whole contract, but his suggestion seems to be nothing more than speculation, unsubstantiated even by argument. From a review of the record, we are convinced that the trial court was justified in granting the motion to dismiss since plaintiff had not shown himself entitled to demand the relief claimed.

Affirmed.

1 . Paragraph eleven of the sales contract concerned default provisions and provided, “ * * * in the event that the purchaser fails to make payment * * * when the same is due or otherwise fails to keep and perform the covenants and conditions on his part to he kept, the sellers shall have the right to notify the purchaser of the alleged default in writing specifying the particulars of the default * ⅜ *. If the purchaser, within sixty days after the date of the mailing of such notice, fails to correct the default, then the sellers shall have the right to declare this contract terminated and ended, shall have the right to keep all moneys paid to date of termination as rent for use and liquidated damages and not as a forfeiture and the sellers shall be entitled 'to the immediate possession of the property herein.”

2 . We later discussed the problem in Gibson v. J. T. Allen Agency, Wyo., 407 P.2d 708, 709-710, and Sturgeon v. Phifer, Wyo., 390 P.2d 727, 729-730.