ON PETITION FOR REHEARING Recovery cannot be had on quantum meruit where express contract exists. Perkins v. Hart, 11 Wheat. 463.
Party must perform contract unless performance is made impossible through no fault of his. Himld v. Jones (U.S.),17 L.Ed. 762.
If claim is on quantum meruit and proof shows express contract, there is fatal variance. Edinger v. Sigwart,110 P. 521.
Plaintiff must recover on cause alleged and not upon some other developed in proof. Mondran v. Goux, 51 Cal. 151.
If agreement is to be carried out in some way other than by payment of money, general rule is it must be declared on specially. Eastland v. Sparks, 22 Ala. 607.
Proposition of law once decided by appellate court is not open to reconsideration upon subsequent appeal or writ of error. Bouvier's Law Dictionary, "The Law of the Case"; Messinger v. Anderson (U.S.), 56 L.Ed. 1152.
Ruling on demurrer is not such final adjudication that court may not reconsider its action and enter contrary order. Dowie v. Priddle, 75 N.E. 243. *Page 311 Petitioner urges this court to place construction upon pleadings and facts diametrically opposite to his position in court below. He seeks to establish premise, which neither facts nor law of case as established by ruling on demurrer justifies, that appellant proved valid express contract and that court below recognized it as such, ignoring fact that lower court held it not valid and express, but indefinite, uncertain and unenforceable. Whether right or wrong, court should and did adhere to ruling and follow it to logical conclusion.
OPINION 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. *Page 312
ON COSTS May 19, 1926. 246 P. 1.