6

appellant alleged that the lease was made in the presence of respondent, and at his special instance and request, and that he then and there released appellant from his lease on said premises, and from any obligations thereunder, and that, in pursuance thereof, appellant put Cook into possession of the premises. Now if these claims are well founded, they constitute a good defense to respondent's alleged cause of action. We know of no rule of law, or principle of equity, under which a party may recover damages for an act or omission which he himself induced or assented to. It is a familiar maxim that "volenti non fit injuria." That is to say, what a person assents to or induces to be done he cannot afterwards complain of as an injury. Respondent, however, contends that the special defense interposed by appellant was insufficient because it was based upon an alleged transaction which, even if it actually occurred, was nothing more than an attempt, on the part of respondent, to surrender an interest in land by parol, which, under the statute of frauds, was a nullity. While it is settled law that no interest in land can be created, transferred, or surrendered by merely a parol executory agreement, it is also equally well settled that a contract for the sale or leasing of real estate may be rescinded by parol. "Such rescission may be effected, not only by an express agreement, but by any course of conduct clearly indicating a mutual assent to the termination or abandonment of the contract." (2 Warvelle, Vendors (2 Ed.), sec. 826.) A question involving this same principle of law was raised in the case of Cutwright v. Union Savings & Inv. Co., 33 Utah 486, 94 Pac. 984, and this court held, in an opinion written by Mr. Justice Frick, that an executed parol agreement to rescind a contract for the sale of land, where the vendee has surrendered, and the vendor has gone into, possession of the premises covered by the original contract, is not void under the statute of frauds. The question here involved is elaborately discussed in the opinion, and many cases are cited in support of the doctrine therein announced.

7

The objection that the transaction pleaded as a special defense is void under the statute of frauds must be overruled.

We are of the opinion that, under all the circumstances, the court should have set aside the default, vacated the judgment, and permitted appellant to answer to the merits. The case is therefore reversed, with directions to the trial court to set aside the default, vacate the judgment, and permit appellant to answer to the merits on such terms as the court may deem just; appellant to recover costs of this appeal.

STRAUP and FRICK, JJ., concur.

ON REHEARING.

FRICK, J. Respondent has filed an application for a rehearing in which it is strenuously insisted that we erred in holding that the averments contained in the answer as an affirmative defense are sufficient to avoid the statute of frauds. In support of the contention counsel cites cases where, under particular facts proved in those cases, there was no surrender, and that a parol executory agreement to surrender demised premises will not be enforced. We have not held anything to the contrary. Counsel seems to misconceive the purport and effect of the decision. In view of this we have deemed it best to add a few words to what is said in the original opinion.

The question before us was not whether the facts adduced at the trial of a case involving a surrender by parol was sufficient, or not sufficient, to constitute a surrender. Nor did we hold that a parol executory agreement to surrender may be enforced, but what we held is that an executed agreement to surrender, although by parol, may be sufficient. The only question for determination was whether the aver ments contained in the answer, which are stated in the

opinion, are broad enough to admit proof of an executed agreement to surrender the demised premises. If the agree ment to surrender is shown to have been fully executed by both parties, neither one of them can thereafter claim that the agreement was unenforceable because within the statute of frauds. In such event nothing is enforced, except what the parties themselves willingly agreed to and as willingly performed. If the surrender was complete, and made with the consent of both parties, the law does not concern itself with the manner in which it was effected. It is only when an agreement which the law requires to be evidenced by a writing is sought to be enforced that the law does not authorize its enforcement, unless established in accordance with legal requirements. The affirmative defense set up in the answer contains averments which partake of both the elements of an estoppel and an executed agreement to surrender. While we entertain serious doubt as to whether the facts alleged are sufficient, as they now stand, to constitute an estoppel, still it is apparent that the statement in this regard could be cured by a more specific statement. Upon the other hand, we are quite clear that the facts pleaded are sufficient to admit evidence showing an executed agreement and a surrender of the demised premises. The answer, therefore, states at least one good defense.

8

The case of Ogden v. Sanderson, 3 E. D. Smith (N. Y.) 166, which counsel for respondent insists is decisive of the question in his favor is, in our judgment, just to the contrary. While the facts with regard to a parol agreement of surrender in that case are exactly parallel with the facts in this case, the decision, however, squarely rests upon the fact that the agreement there in question was never executed. The court, at page 169, in speaking of the negotiations, says: "All these negotiations, however, appear to have failed." Further, in speaking of what constitutes an eviction, it is said:

"An eviction of a tenant is an interference with his possession of the premises, or some part thereof, by or with the consent of the landlord, by which the tenant is deprived of the use without his consent; but, where the tenant is present at a negotiation to relet the premises to a third person and does not object, but at the same time is proposing a surrender on his own part, a possession by such third person, under such circumstances could hardly be

considered an eviction."

If,

It is true that the court in that case held that there was no surrender because, as it said, "no surrender is proven. A proposed surrender was talked of, but not executed, and this lease could only be surrendered by writing or by operation of law." If possession of leased premises is surrendered by the tenant and accepted by the landlord, it constitutes a surrender by operation of law. This is the effect of the holding in the original opinion. therefore, appellant can establish the fact that fact that the agreement to surrender was fully executed with the consent of both parties, then he has a good defense to the action. This proof, we think, is admissible as the answer now stands. But if the averments are not deemed sufficiently specific, respondent has a remedy by special demurrer. As against a general demurrer (which the objection in this case, in effect, is), in view of the liberal construction that our statute requires to be given to pleadings, we think the averments are sufficient. The application for a rehearing, therefore, is denied.

STRAUP, C. J., and MCCARTY, J., concur.

BLUE CREEK LAND AND LIVE STOCK COMPANY, a Corporation, Appellant, v. ANNIE ANDERSON

et al., Respondents.

No. 1931. Decided January 12, 1909 (99 Pac. 444).

1. NEW TRIAL-NOTICE OF MOTION—AMENDMENT. A notice of motion for a new trial cannot be amended after the expiration of the time allowed by statute by adding a ground not germane to anything contained in the original notice. (Page 63.)

2. APPEAL AND ERROR-ASSIGNMENTS OF ERROR-SUFFICIENCY. Under Supreme Court Rule 26 (97 Pac. x), providing that the particulars wherein the evidence is claimed to be insufficient shall be specified, an assignment of error that the court erred in denying a motion for a new trial, the grounds alleged in which were "insufficiency of the evidence" and "errors of law occurring at the trial," is insufficient to raise the question of the sufficiency of the evidence. (Page 64.)

An

3. APPEAL And Error-ASSIGNMENTS OF ERROR-ABANDONMENT. assignment of error not discussed in appellant's brief must be treated as abandoned. (Page 67.)

APPEAL from District Court, First District. Hon. W. W. Maughan, Judge.

Action in trespass by the Blue Creek Land & Live Stock Company against Annie Anderson and others. From a judgment for defendants, plaintiff appeals.

AFFIRMED.

Messrs. Thomas, Richards & Porter for appellant.

J. C. Walters for respondents.

STRAUP, C. J.

This is an action in trespass. The plaintiff alleged in its complaint that it was the owner and entitled to the posses