
    P. C. Cowling v. O. J. Greenleaf.
    
      Motion for Rehearing.
    
    The plaintiff in error filed a motion for a rehearing in Cowling v. Greenleaf, (reported in 32 Kas. 392, et seq., wherein the facts are stated.) The opinion herein was filed at the May 1885 session of .the court.
    
      Ominingham & MeCarty, for plaintiff in error.
    
      Buck & Feighan, for defendant in error.
   Per Ouriam:

This case was tried by the court without a jury. The court made its findings of fact and conclusions of law upon the evidence introduced, and no evidence is preserved in the record. The complaint is, that this court should have construed the following words of the contract: “ But it is expressly agreed between the parties that if at any time during the said period of three years either of these parties shall have just cause so to do, he may annul this contract.” The contention of plaintiff is, that under the terms of the contract either party had the right to annul the contract for any cause assigned in good faith, and that the plaintiff, acting in good faith, did annul the contract before the commencement of this action; and therefore that he was entitled not only to immediate possession of the sheep in controversy, but also entitled to recover all his costs. The findings of the trial court do not render it necessary for us to construe the words “just cause so to do.” The court in its tenth finding of fact stated: “Said contract had not been annulled previously to the commencement of this suit.” This finding is somewhat modified by the other findings, but not to the full extent of showing any annulment of the contract by the plaintiff, or that he gave any notice to the defendant that he had or would annul the contract. By the fifth finding of fact, it appears that on September 8, 1882, the plaintiff told the defendant that he was not satisfied with the way the latter was treating the sheep, and that they had better settle up, but at that time there was no annulment of the contract. By the eighth finding of fact, it appears that on November 28, 1882, the defendant left Kansas for Ohio, and' did not return until after this action was commenced, and that in his absence the plaintiff went to his residence and demanded of his wife, Mrs. Fannie Greenleaf, and his hired man, Dick Nickerson, the sheep. The finding does not show that he made the demand of these parties as the agents of the defendant^ or that he gave any reason for the demand. On the other hand, the record shows that he made Mrs. Fannie Greenleaf and Dick Nicker-son parties to his action, and therefore his demand upon them was the same as if they held the sheep independently of any •claim, right or possession of the defendant. The conclusion of law based upon the findings was, “that said contract had not been annulled before the commencement of this suit.” If the plaintiff was not satisfied with the findings of fact, he should have asked the trial court to make further findings, or modify those made. Nothing of this kind was done.

The motion for rehearing will be overruled.  