Opinion
No. 1708.
Filed March 17, 1927.
Decided March 18, 1927.
MOTION FOR REHEARING.
PERRY, C.J., BANKS AND PARSONS, JJ.
E.R. Bevins for the motion.
The appellee moves for a rehearing on four grounds, which may be stated briefly in effect as follows: (1) That the bill shows no prior demand by or on behalf of appellant for part performance by appellee of the contract therein alleged, either with or without abatement of the consideration on account of the non-surrender of Takemori's interest; (2) that the bill shows affirmatively the impossibility of full performance of said contract by appellee and an insistence on the part of appellant of such full performance only; (3) that the decision of this court shows that the failure of the bill to allege a demand for part performance was not considered by this court, and (4) that appellee believes that if the failure of said bill to allege such demand or to show willingness on the part of appellant prior to the institution of said suit to accept part performance of said contract had been considered by this court the decision of the trial judge sustaining the demurrer of appellee would have been sustained.
As set forth at length in the opinion, the bill sufficiently alleged a prior demand for full performance and it did not show affirmatively impossibility of full performance. In these circumstances, which are the only ones that need be considered at present, it was unnecessary for the complainant to allege an alternative or additional demand for part performance and compensation or abatement from the purchase price on account of a part of the contract not to be performed.
The motion for rehearing is denied without argument under the rule.