MAYER v. BEONDO (1948)

As we construe respondent's petition for rehearing, he does not request that the cause be reheard in this court but that we strike from the judgment the direction to the trial court to enter judgment for defendant, in order that upon a retrial of the case he may correct errors and deficiencies in his pleadings and proof which were expressly called to his attention when the case was on trial, and which, by reason of his failure to amend his pleadings and supply omitted proof, resulted in a reversal of the judgment.

1. He maintains that during the trial his failure to prove tender of consideration to appellant was not raised. On the contrary, the necessity of such proof was twice called to his attention: (a) The allegation in the complaint that respondent had performed the conditions of the agreement and had tendered to defendant the purchase price was expressly denied in appellant's answer. (b) After the evidence had been completed and both sides had rested, the failure of proof was called to respondent's attention by counsel for appellant, who said: ‘Regarding the escrow instruction, there is no tender shown.’ There has been no proper tender shown.' Respondent did not, as was his privilege, request leave to reopen the case for the purpose of offering proof of tender if such tender had been made.

2. Respondent's second contention is that the direction to the trial court to enter judgment for defendant should be stricken from our judgment and that the case should be remanded for retrial, in order that he may amend his complaint and correct the fatal defect therein by supplying an allegation that the contract was fair, just and equitable to defendant. Three times during the trial appellant's counsel specifically pointed out this defect, and once objected to evidence as to the value of the property because of the absence of such allegation, but respondent did not ask leave to amend by supplying the necessary averment.

Respondent had ample opportunity during the trial to correct the errors which caused a reversal of the judgment. Having elected to stand on the defective pleading and having failed to furnish proof of a necessary allegation that had been denied, he is not now entitled to further opportunity to correct his errors.

Petition for rehearing denied.

PER CURIAM.

Hearing denied; CARTER, J., dissenting.