#### Wells v. Watkins et al.

May 14, 1948.

T. O. Jones for appellant.

Iler & Logan for appellees.

*450Opinion op the Court by

Clay, Commissioner

Reversing,

This is a second appeal. The action was brought by appellant to recover $850.00 which she had advanced to appellees under a verbal contract for the purchase of real estate. A judgment was originally entered for appellant after a general demurrer was sustained to appellee’s answer as amended. We reversed the judgment on the ground that defendant’s answer as amended constituted a good defense to the action. Watkins et al. v. Wells, 303 Ky. 728, 198 S. W. 2d 662, 169 A. L. R. 185.

Upon return of the case, appellant filed an amended petition to which the Court sustained a general demurrer. This second appeal is based on the ground that the petition as amended states a good cause of action.

The pleadings of the parties are in substance as follows: Appellant alleged in her original petition that she and appellees had entered into an oral contract, wherein she agreed to purchase appellees’ real estate-for $10,000. On the date of this verbal agreement, she advanced $850.00 in cash. Since the contract was not in writing and was unenforceable by either party (371.-010, KRS), the following day she notified appellees that-she would not purchase the property.

By amended answer appellees alleged the day appellant repudiated the contract they had tendered her a deed to the property.

On the former appeal we decided that since the-pleadings showed appellant, the vendee, had repudiated the contract when the vendors tendered performance,, she was not entitled to recover the purchase money advanced.

On return of the case an amended petition was filed, by appellant wherein she alleged in substance that actually appellees, the vendors, had first repudiated the-contract. The lower Court sustained a demurrer to-this amended petition, apparently on the ground that the former opinion constituted the law of the case and appellant could not allege facts inconsistent with those shown on the former appeal. We believe that the Court, improperly sustained this demurrer.

*451Our former decision was based on tbe fact, shown by tbe pleadings then in tbe record, that appellant, tbe vendee, bad rescinded tbe contract when tbe vendors were able and willing to perform. We held that in such situation tbe vendee was not entitled to recover back tbe advance payment sbe bad made on tbe purchase price. We stated in that opinion, however (Watkins et al. v. Wells, 303 Ky. 728, at page 730, 198 S. W. 2d 662, at page 664):

> “If tbe vendee shows tender of compliance on his part and a refusal of compliance on tbe part of tbe vendor, a different result obtains, * ***

In tbe original petition filed by appellant, sbe was apparently relying upon our decision in tbe case of Duncan v. Duncan et al., 259 Ky. 844, 83 S. W. 2d 485, wherein we stated that under the facts there shown, it was immaterial which of tbe parties bad first repudiated tbe contract. Her original petition simply stated that sbe notified appellees sbe would not purchase tbe property and that sbe bad declined and refused to purchase it. By her amended petition, which is now before us, sbe alleges tbe reason why she declined to go through with tbe contract. This reason was that appellees bad advised her they would not comply with tbe terms of tbe agreement and, therefore, they first breached and rescinded tbe contract.

We know of no reason why tbe appellant should not be permitted to allege and prove tbe true facts upon which sbe bases her claim for a refund of tbe purchase-money advanced. Our former decision did not finally determine tbe merits of tbe ease. It simply decided that on tbe basis of tbe facts as shown by tbe pleadings at that time, sbe was not entitled to recover. Since appellant bad been tbe successful party in tbe trial Court, there bad been no occasion to amend her petition, nor-had sbe declined to plead further.

Under Section 134, Kentucky Civil Code of Practice, tbe Court is authorized to permit tbe amendment of pleadings in furtherance of justice. It is true the-losing party on an appeal should not be allowed to-change bis cause of action after tbe case is remanded, but we are convinced appellant’s amended petition does not attempt to effect such change. After the former *452appeal, the case was returned to the Court for proceedings consistent with the opinion. Proceedings consistent therewith would properly be additional pleadings by the parties to reach a true issue on the merits of the controversy. In Dorton v. Ashland Oil & Refining Co., 303 Ky. 279, 197 S. W. 2d 274, we expressly recognized the right of a party in a common law action to amend his pleadings in the proper case after it has been remanded upon reversal.

It does not appear that appellant’s original petition undertook to state which of the parties first repudiated the contract. In view of our former decision, that has now become one of the most important elements in the case, and appellant should be permitted to prove the facts alleged in her amended pleadings.

For the reasons stated, the judgment is reversed with directions to overrule appellees’ general demurrer to appellant’s amended petition, to permit the filing of such other pleadings as may be necessary or proper, and for such other proceedings as may be consistent with our former opinion and the opinion on this appeal.