Watters v. Ryan ( 1918 )

WHITING, P. J.

(concurring specially). My -colleagues hold that the contract between these parties was -su-ch that no such state -of facts different (from those shown: upon- the former trial) is or could be shown to exist as would warrant “a -different decision on (this) the second appeal.” If they were -of such- op-inion, they should not have concurred in the opinion handed dWwn upon the former a-p-pea-l, but should have directed the lower -court to enter judgment in favor of ■defendant. 'Upon the forrper appeal we remitted the case for a new trial, saying:

“This cause should fee remanded to the trial court for further trial, and unless such court shall 'be able, under such further light as it may receive upon another trial, to construe the contract so that, even after the lapse of 'the long period that has run since' it was entered into, equity may be done between the parties hereto, or unless respondent shall come into court anid ‘consent to a conscientious' modification of the contract’ (Willard v. Taylor [8 Wall, 557, 19 L Ed. 501] supra), it should remand the respondent to his rights at law and1 refuse specific performance of ¡the contract.”

I ¡believe this court did not err in its former opinion, and therefore cannot concur in the reasons announced by any colleagues for affirming the lower court. But, being of the opinion that upon the new trial no facts were shown warranting a different construction' of the contract from that given upon the former appeal, and that plaintiff did not upon the new ¡trial ‘‘consent to a conscientious modification of the contract,” I 'am of the opinion that the trial court did not err in refusing specific performance of the contract.