On Rehearing.
(166 Pae. 951.)
Mr. Thomas Man-nix and Mr. E. E. Goovert, for appellant.
Messrs. Clark, Skulason & Clark, Mr. Guy C. H. Corliss and Mr. W. S. Nash, for respondents.
*481In Bane. Opinion
Per Curiam.12. The questions raised upon the hearing have necessitated a review and checking up of all the points touched upon in the original opinion. Relating to the first cause of suit we are in entire accord with the original opinion and with the opinion and decree of the-court below. In relation to the second cause of suit it was erroneously assumed that the objection that there was a misjoinder of causes of suit was not well taken because there had been no demurrer interposed on that ground; Mr. Justice McBride who wrote the opinion saying:
“It was claimed by the defendants upon the argument that a cause of suit to rescind a contract upon the ground of fraud rendering it void could not be joined with a cause of suit to set aside a forfeiture prescribed in the same contract by reason of a breach in its provisions, the first being, in effect, a denial of the existence of a valid contract, and the second an affirmation of its existence; and this seems to be the general rule. However, in the case at bar no demurrer for misjoinder was interposed; the only demurrer filed being general as to each cause of suit. Later a motion to compel the plaintiff to elect was withdrawn or overruled by consent. In this state of the case we will consider the second cause of suit upon its merits as disclosed by the testimony”: Stennick v. J. K. Lumber Co., ante, p. 473 (161 Pac. 97).
Upon a re-examination of the voluminous transcript we discover that a demurrer for misjoinder was filed and overruled on March 9,1915. We are of the opinion that the objection was well taken and that the bill was clearly multifarious. While the court below overruled the demurrer, the opinion rendered as well as the final decree make it evident that it proceeded upon the theory that this was a suit for a rescission of the contract *482upon the ground of fraud, and not otherwise. In addition to the learned opinion of the court below given upon the principal case, which only the lack of space prevents us from incorporating here, the Circuit Court upon a motion for re-examination of the case rendered the following additional opinion, which we give in full:
“Since the decision was rendered the plaintiff has presented a motion for a decision that will fully determine and adjust the equities in this suit. The motion and argument were addressed mainly to the forfeiture which was declared under the provisions of the contract. I concluded early in this litigation that this was not a suit to be relieved from a forfeiture, but that it was a suit to rescind the contract for fraud inducing its execution. In that view I could only consider those negotiations which were had before, or at the time of execution, since proceedings taken after execution could not have induced the contract. It appeared plain that a suit to rescind and a suit to be relieved from a forfeiture could not be maintained together, because they are inconsistent remedies; one in repudiation and the other in affirmance of the contract; that if both remedies were pursued together the bill would be multifarious and vulnerable to the demurrer. So this demurrer was overruled upon the assumption that one cause of suit was stated, and that a suit to rescind. These remedies being inconsistent, the adoption of the one was the exclusion of the other. The entire theory of the case as indicated by the pleadings, the evidence, and the arguments was the rescission of the contract for false representations of the quantity of timber. Fraud was the controlling issue, and the disposition of that issue was decisive of the ease. I did not regard the averments relating to the forfeiture as raising a distinct or vital issue, nor one having a direct bearing upon the issue of fraud, but merely ás disclosing the later contractual relations of the parties, and important only to advise the court of the existing situation in case a rescission was decreed.. But, aside from the question of con*483sistency, I could not relieve against the forfeiture, because the conditions do not exist upon which that relief could be granted. There is neither a disposition nor apparent ability to perform the obligations of the contract if the forfeiture were removed. This remedy presupposes an intention and ability to perform, and is usually provided by an interlocutory decree, extending the time of performance and suspending the forfeiture during that period. I take it to be elementary that such relief cannot be granted at the suit of a party who declines to perform his part of the contract, and who disclaims in advance any intention to comply with its provisions. I am unable to follow counsel for plaintiff in his contention that the forfeiture should be removed, and the status quo restored, or its equivalent attained by a decree for money. This would involve not only relief against the forfeiture, but also a rescission of the contract on account of the forfeiture. I have given this cause diligent and conscientious service. Every contention of the plaintiff has been considered, and in this I have never been unmindful of the unfortunate situation in which the bankrupts have been placed. But I must decide this suit upon the law and the evidence. I am firmly convinced that fraud was not established, and this failing the present suit must fail. Any other available remedy the plaintiff may have will not be prejudiced by the decree. For the rest, the appellate court will correct any unconscious errors that I have made.”
There was a practical election on the part of counsel to try the case as one for the rescission of a contract upon the ground of fraud. At the beginning of the trial in answer to a remark of the court counsel for defendants replied:
“Certainly we are not proceeding on any theory of affirming this contract; we are proceeding upon the theory of disaffirming it, and we claim the right to introduce evidence—
*484“The Court: The inquiry you desire to make in the question of warranty is in so far as that constitutes misrepresentation ?
“Counsel for Defendants: Absolutely.”
So it appears that the whole case was tried out upon the theory that if there were no fraudulent misrepresentation and no breach of the contract by the defendants, there was no right to recover in this suit. The subsidiary questions raised in plaintiff’s alleged second cause of suit, and again urged here, were properly considered as not involved in that issue as they were pleaded and could only be pleaded upon the theory that there was a valid and subsisting contract, whereas the suit for rescission was in disaffirmance of the original agreement upon the theory that it was invalid. . What is said, therefore, in the original opinion upon those matters relating peculiarly to the alleged second cause of suit may be regarded as dictum.
It is urged that certain property taken possession of by the defendants upon the forfeiture is shown by the evidence to belong to the Yule Logging Company and not to the Dodge interests; but for the reason above stated, as well as for the additional reason that that company is not a party to this suit and has been and is yet at liberty to litigate its own property rights with defendants, we are not authorized to consider that phase of the case.
As explained and modified herein we adhere to our original opinion, and the decree of the Circuit Court is affirmed as rendered.
Opinion Modified and Adhered to.
No Costs Allowed Either Party.