ON PETITION EOR REHEARING
Potter, Chief Justice.The judgment of the district court complained of in this ease having been affirmed (201 Pac. 149), the plaintiff in error has filed a petition for rehearing. No material point is presented that was not considered in the former opinion, but the grounds stated for rehearing are that the court erred in the conclusions and the reasons therefor stated in that opinion. The case was given a very careful and thorough consideration on the former hearing, and, although it was then submitted upon the briefs without oral argument, we reached the conclusion stated only after an exhaustive examination of the authorities upon the questions presented; and after a candid and careful consideration of the brief in support of the petition for rehearing we remain convinced that the cause was correctly decided, and are of the opinion that a rehearing could serve no useful purpose. Nor do we think it necessary to again discuss the several questions considered in the former opinion, for our views are, we think, clearly expressed therein.
But counsel for plaintiff in error, in his present brief, fails to distinguish between what was held or stated in the former opinion upon the question of the right of plaintiff to recover the money paid on the theory .that the defendant *110had rescinded the contract, and what was held and stated as to the sufficiency of the amended petition to entitle the plaintiff to relief in equity against a forfeiture; and in some respects the criticisms of the statements in the former opinion by the petition for rehearing and the brief are not justified by the facts or misconstrue what was intended by the court. It seems proper, therefore, to explain the court’s position and its understanding of the record in those particulars.
As shown by the former opinion, the theory of the amended petition is and the contention of counsel for plaintiff in error at the former hearing was that the defendant, as vendor, rescinded the contract by recalling the deed from escrow upon the failure of the plaintiff, as vendee, to pay a certain installment of the agreed purchase price when it became due under the contract. And we held that the act of the vendor in so recalling the deed, in view of the provisions of the contract, did not amount to a rescission and therefore furnished no ground for the recovery of the money paid in- an action at law on the theory that because of his rescission of the contract it became the defendant’s duty to refund the money paid, and pay for improvements placed upon the property by the vendee. And the controlling principle upon that theory of the ease under our interpretation of the contract was stated substantially as follows: That in an installment contract for the sale of real estate, where time is of the essence, or where the prompt payment of the installments is made a condition precedent, and the vendee defaults, and, without pleading sufficient facts to bring his case within recognized rules of equitable jurisprudence, sues at law to recover the money paid, he cannot recover the purchase money paid, nor the improvements placed upon the property; the court having held that in an action at law, involving no equitable grounds for relief, time must be considered as of the essence of the contract in question.
*111Following a statement of the averments of the amended petition, upon which the judgment had been rendered after sustaining a demurrer to that petition and the refusal of plaintiff to further plead, and before proceeding to discuss the ease upon the contentions of plaintiff in error, reference was made in the former opinion to the absence from the petition of any averment as to certain facts and as to other facts the absence of a direct or definite allegation, and some of the.statements there made are criticized by the petition for rehearing and the brief in support thereof as requiring unnecessary allegations in the petition or as erroneously construing it. With the exception of what was said in that part of the opinion referring to the allegations as to the cause of plaintiff’s default in payment, the statements criticized were not intended as controlling the decision of the cause upon the theory of a rescission of the contract by the vendor, as we think clearly appears from the opinion showing distinctly the points upon which the ease upon that theory was decided. But for the most part such statements referred to matters to be considered upon the question of the sufficiency of the petition to show a right to equitable relief, which, although not suggested in the brief of plaintiff in error, was intended to be and was discussed after disposing of the contentions of plaintiff in error stated in the opinion.
Thus, one of such statements now criticized is that there is no allegation that plaintiff had ever tendered or offered to pay the installment due on July 9, 1914. That was not stated as a ground for the decision upon either of the questions considered in the opinion, and the fact was not again referred to in the opinion. The absence of such an allegation was stated for the purpose merely of eliminating from the ease any. question of tender or offer to pay by showing that through the absence of averment it was not involved. It did not misstate a fact and is no ground for rehearing or complaint. Again, the plaintiff in error complains of the statement in said former opinion that the amended pe*112tition contains no allegation that the person- who had signed the contract as vendee and the plaintiff are one and the same person, and it is said in the brief that such statement was an unjust criticism of the petition. That was not stated as a ground for the court’s conclusion that the demurrer had been properly sustained, but, instead of being adverse to the plaintiff, the statement was decidedly in her favor, for we said in connection with it that the defendant in his brief had virtually conceded the fact that the plaintiff was the person named in the contract as vendee, and it is apparent from the opinion that the court assumed that to be the fact. It ought to be apparent to counsel that the statement was not made for the purpose of criticizing the petition but to explain the court’s position in assuming the plaintiff to be the vendee who had signed the contract, in the absence of any direct allegation of her relation to it other than the general averment that she had made that contract with the defendant; the court having quoted the entire contract, showing a dissimilarity between the name of the vendee mentioned therein and the name of the plaintiff in this action.
In discussing that matter it is said in counsel’s brief that the contract was not set forth in the petition because unnecessary, but was attached to it only as an exhibit, apparently intending thereby that the contract was not a part of the petition and should not have been referred to by the court. We do not suppose that counsel intends to put the court in a false position as to that matter, though that seems to be the effect of the argument, for counsel’s statement as to the relation of the contract to the petition is not entirely correct. The original'petition in the case alleged as to the contract merely that on or about a certain date the plaintiff entered into a written escrow agreement with the defendant, wherein she agreed to purchase from him and he agreed to sell and convey to her the tract of land described, and that for the purpose of effecting said agreement, the defendant made and executed a warranty *113deed for said property and deposited the same, with, the agreement, in the hands of a third party, to he delivered to the plaintiff npon her completion of the payments therein provided for. It appears from the record that a demurrer to that cause of action in the petition was sustained on May 17,1918, and plaintiff was given until June 1, 1918, within which to file an amended petition; that on May 20, 1918, an order was entered stating that on stipulation of both parties to the suit, the copy of the escrow agreement referred to in plaintiff’s petition is to he attached to plaintiff’s petition and made a part thereof. The amended petition was filed on the same day, May 20, 1918, and in the first cause of action, which is the cause of action involved in the case here, it is alleged that the plaintiff entered into a written escrow agreement with the defendant, ‘1 a copy of which is hereto attached and marked ‘Exhibit A,’ and made a part hereof;” and attached to the petition appears a copy of said contract and of the endorsements of the several payments made thereon, marked “Exhibit A.” And we think it obvious that said order stated to have been made upon the stipulation of the parties had reference to the amended petition and was madé for the purpose of permitting the court to consider the said copy as a part of the petition. Hence, whether or not the reference to the contract in the petition as attached thereto with the statement that it is made a part thereof would ordinarily constitute said agreement or a copy thereof a part of the petition, we think it became such in this ease, or at least should be so considered, because of said order made upon the stipulation of the parties. More than that, the briefs of both parties upon the original hearing referred to the contract, apparently as a part of the amended petition, and certainly without any suggestion that it was not a part of it. Plaintiff’s contentions in her original brief were based upon the provisions of the contract and the fact that it did not expressly stipulate for a forfeiture of payments made before' default. In that brief *114it was said: “The issue before this court may be briefly stated by three questions, namely: (1) In an escrow agreement for the sale of real estate, which agreement does not fix the rights nor liabilities of the parties in ease of default of vendee to make payment of an installment on the day it is due, nor stipulate that payments made before default shall be forfeited to vendor, can such vendor on default of vendee to make payment of an installment on the day it is due, rescind the contract, take up the deed, and declare all payments made a forfeiture to him, or must he on rescinding the contract return all payments so received by him, less any just claim for rent or other proper demands ? ’ ’ And the second question suggested was whether “under the conditions set forth in question number one” is the vendee entitled to recover the full value of valuable improvements placed upon the premises? In the. defendant’s brief before us at the former hearing our attention was called to the order of May 20, 1918, making the agreement a part of the petition upon stipulation of the parties. "We think it is now too late for plaintiff to contend that the contract is not a part of the petition, or to complain of the court’s reference to it in the opinion disposing of the case.
Referring to the third contention of plaintiff on the original hearing, that defendant, by his wrongful acts, had prevented plaintiff from paying the installment in which she defaulted, the court said in the opinion that the aver-ments of the amended petition as to the alleged wrongful acts of defendant do not charge that such acts prevented the payment, but that “at most, it merely alleges that the defendant, coupled with other unavoidable hindrances, prevented the plaintiff from meeting the installment when due.” Counsel for plaintiff in error in his present brief, states that the opinion in that respect couples two separate allegations, the wrongful acts of the defendant, and other unavoidable hindrances, into one, and that “they are alleged conjunctively by the word ‘and’ and as so alleged they are independent.” But whether that, if true, would *115make any difference or not, the court properly coupled the allegations, as shown by the amended petition itself, which is correctly quoted in two places in an earlier part of the opinion, as averring that “through the wrongful acts of defendant in interfering with the tenants of plaintiff, and thereby causing them to withhold from plaintiff money due her from said tenants, which with other unavoidable hindrances, plaintiff was unable to meet the installment due.”
It is also stated as a ground for rehearing that we erred in assuming that plaintiff was in possession of the premises during the life of the escrow agreement, and it is argued that plaintiff said nothing about that in her brief and that she is not chargeable with anything that defendant’s brief may have said about it. But we said that both parties in presenting the case had assumed that plaintiff was in possession. And we, think that properly stated the situation disclosed by the briefs. Not only did defendant’s brief present the case upon the theory that plaintiff had been in possession until her default, but that was true also, we think, of plaintiff’s brief, for, in stating the questions to be considered, that brief stated as the first question, whiph is quoted above, whether on rescinding the contract the vendor must return all payments made “less any just claim for rent or other proper demands, ’ ’ and, as the second question, whether the vendee is entitled to recover the fair or any value of the improvements “which vendor notv takes to his own use.” And there is no statement in the brief indicating that plaintiff was not or may not have been in possession. If plaintiff had not been in possession the vendor would have had the use of the improvements from the time they were made. But the court did not merely assume that plaintiff was in possession. It also construed the petition as showing the fact, basing such construction upon the averments that plaintiff had placed valuable improvements on the property, and that when defendant recalled the deed from escrow he ‘ ‘ took possession of said *116improvements.” Certainly if plaintiff had not been in possession there would he nothing whatever in the petition to show any right or opportunity to place improvements on the property. And in view of such averments of the petition and the references in the briefs apparently assuming the fact of possession, it seemed not improper to say that the court would also assume it. We are satisfied that the petition cannot properly he construed or considered as showing that plaintiff did not have possession, and cannot think it probable that the case would have been presented as it was, or that the petition would have been prepared and left in the form it was, if the fact was that plaintiff had not been in possession of the property. While it may be true that plaintiff is not responsible for statements concerning such a matter in defendant’s brief, it would, at least, have been proper for plaintiff’s counsel to call the court’s attention to his understanding that the fact of plaintiff’s possession was not shown by the petition or the record, if that was his understanding.
There is absolutely nothing in the case, which for its facts depends upon the averments of the petition, that would permit the court to consider the assertion of counsel in his present brief that the forfeiture suffered through plaintiff’s default is unconscionable and so harsh as to exact everything she had acquired by meager earnings through years of hardship and sacrifice, nor anything in the record upon which to base that assertion. Nor is there anything to show that any amount was forfeited in excess of what would have been a fair return to the defendant for the use of the property under the conditions of the contract. What was said in the former opinion as to the failure of the petition to allege that the amount paid was in excess of the value of the use of the property had reference to the sufficiency of the petition to show a right to equitable relief. The petition in that respect was not, in our opinion, merely indefinite, nor would the suggested allegation amount to the pleading of evidence. We held *117it to be necessary as the averment of an ultimate fact essential to relief in equity against tbe forfeiture of tbe money paid under tbe contract. And so tbe averment that tbe plaintiff bad placed valuable improvements upon tbe property was not merely indefinite, but tbe essential fact necessary to be shown in an action for equitable relief, that sucb improvements were permanent or enhanced tbe value of tbe property, was not alleged. But even if the word “improvements” standing alone might be given its broadest meaning as something which substantially enhances tbe value of tbe property, which we think doubtful in a case like this, tbe petition would still be insufficient because failing to allege tbe authority by which tbe improvements were made, whether with the vendor’s consent or under circumstances that would entitle the plaintiff to recover for them. And such an averment would be possible without pleading evidence.
Rehearing denied.
Blume, Justice, and Tidball, District Judge, concur.