Siebert v. Smith

244 P. 1012, 49 Nev. 310, 1926 Nev. LEXIS 12

• Court: Nevada Supreme Court
• Decided: April 12, 1926
• Docket: 2671
• Status: Published

Opinions

OPINION

Per Cttriam:

Counsel for respondent, in his petition for a rehearing, says:

“In the case at bar, if I am not mistaken, Mr. Siebert, the appellant, had a valid contract by which he could have received the stock which, according to his complaint, was to be delivered to him upon the fulfillment of the conditions specified in the alleged contract.”

The first cause of action pleaded in the complaint was upon the alleged contract. This cause of action was demurred to by respondent upon the ground that it did not state facts sufficient to constitute a cause of action, in that it did not plead a binding contract. The demurrer was sustained. It seems that respondent seeks to shift his position, in that he now says the plaintiff “had a valid contract.” This he cannot do. This court, in State ex rel. v. Commissioners of Lander County, 35 P. 300, 22 Nev. 71, quoted from Bigelow on Estoppel, as follows:

“It may accordingly be laid down as a broad proposition that one who has taken a'particular position in the course of a litigation must, while that position remains unretracted, act consistently with it.”

See Wheeler v. Hurley, 49 Nev. 70.

After a careful consideration of the petition, we fail to find any justification for the granting of a rehearing.

Petition for a rehearing is hereby denied.

May 19, 1926. 246 P. 1.