Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-30

court saying; 1T would thus appea
not only that plaintiff has not full
Performed the terms of his contrac
without which he cannot recover, bu
also that the defendant, contrary I
her and her agents formerly self-con
ceived notions, had and still has, muc,
need of the plaintiff, or some othe
attorney, to perfect the title to tn
premises" (55 r. 1917
Upon the rendition Of this opinion
plaintiff procured from the county
quit-claim deed completely clearin,
the title and again brought suit 70,
specific performance. Defendant an
swered, pleading the judgment ant
decree Of this court as a defense t
the suit, and this plea being sustained
the suit was dismissed, plaintiffs
appeals.
Mcbride, j. Plaintiffs argument
proceeds upon the theory that, if the
opinion rendered by the supreme court
in the former case is to control. the
ruling Of the circuit court must be
reversed; but, If the decree rendered
is to control, the ruling below must
stand. We will discuss the case from
that point of view.
We think the rule well settled that,
II the decree is ambiguous in its terms,
resort may be had to the opinion to
ascertain its meaning: II Van Fleet,
Former Adjud., section 27S; Legrand
v. Rixey, SS Va. 462; Burton v. Mill,
rs Va. 47O; New Orleans, etc. R. Co. v.
City of New Orleans, IA Fed. S7S.
But where the decree is unambigu-
Gus, resort will not be had to the opin-
ion to contradict 1t or to show that
matters apparently decided were not
actually passed upon.
The force of the estoppel resides in
the judgment itself. 1t is not the find
ing Of the court nor the verdict of
the jury which concludes the parties,
but the judgment entered thereon. The
reasoning of. the court in rendering
judgment forms no part Of the judg-
ment as regards its conclusive effect;
nor are the parties bound by the re-
marks made or opinions expressed by
the court in deciding the cause, which
do not necessarily enter into the judg-
ment: 20 Cyc 1918, and cases there
cited.
The former decree of this court was
conclusive of the whole issue, and
while the opinion filed did not discuss
some phases of the case included in
the final decree, and seems at vari-
ance in some particulars with the de-
cree itself, it is binding upon this
court. We have frequently recalled
mandates and corrected such discrep-
ancies upon their being called to our
attention, but such course was not
pursued in this case, and in the alb
sence Of such procedure or any direct
procedure to set aside the decree for
mistake, 1t was binding upon the court
below and is also binding upon this
court. In any event the opinion rem
dered by this court held that plaintiff
had not performed his part OF the
agreement at the time of the bringing
Of his first action, and 1t does not
stand to reason that, several years
later and after that suit had been dis
missed and he had been discharged
by defendant, he could, without new
with her, act as her attor-
ney and complete the performance OF
his contract. The contract to clear
plaintiffs title was entered into in
June, 1906, and on January 4, 1910, |
this action was commenced. AS no
time was fixed for performance of the
contract, the law implied a stipulation
that it should be performed within
reasonable time. A delay of three
years and half, unexplained, is prima
Iacie unreasonable, and while the
plaintiff may have an action on guam
-um meruit for the value of his SER
'ices, or for damages for his discharge,
I would seem that even had the decree
followed the opinion he would have
iad no case for specific performance.
The decree Of the circuit court is
Affirmed.