Atwood v. Rose

• Decision Date: 19 March 1912
• Docket Number: Case Number: 1451
• Citation: 32 Okla. 355,122 P. 929,1912 OK 244
• Parties: ATWOOD v. ROSE et al.
• Court: Oklahoma Supreme Court

1912 OK 244

122 P. 929

32 Okla. 355

ATWOOD v. ROSE et al.

Case Number: 1451

Supreme Court of Oklahoma

Decided: March 19, 1912

Syllabus

¶0 1. PLEADING--Allegations in General--Construction--Demurrer. In the construction of a pleading, challenged by demurrer before trial, nothing will be assumed in favor of the pleader which has not been averred, as the law does not presume that a party's pleadings are less strong than the facts of the case warrant.

2. FRAUDS, STATUTE OF --Sufficiency of Memorandum --Correspondence. A complete contract, binding under the statute of frauds, may be made through the medium of letters, writings, and telegrams, signed by and passing between the parties, when such writings are so related to the subject-matter, and are so connected with each other, that it may be fairly said they constitute one paper relating to the contract.

3. CONTRACTS--Principal and Agent--Validity--Authority of Agent--Question of Law. Where a transaction between parties, and the authority of an alleged agent in relation thereto, consists entirely of writings, letters, and telegrams, it is for the court to say, as a matter of law, whether such writings, construed together, constitute a contract or show an authority in the agent.

4. PLEADING--Motions--Making More Definite and Certain. Where a petition alleges a contract for the sale of lands, made between plaintiff and an agent of defendants, and that the authority of the agent is in a writing subscribed by defendants, held, not error to require the plaintiff, on motion of defendants, to set out a copy of the writing alleged to constitute such authority.

5. SPECIFIC PERFORMANCE--Contracts Enforceable--Authority to Make. In a suit for specific performance of an alleged contract for the sale of land, where it is alleged that the contract was made by an agent, authorized in writing to make same by the two joint owners of the land, and that such authority of the agent consisted of various letters and telegrams, it is essential, to sustain such authority, that the writings relied upon show that the agent, at the moment of the attempted sale, was clothed with authority from both of the joint owners to make the sale to the purchaser, upon identical terms, and that it was so made.

6. CONTRACTS--Validity--Mutuality. No contract is complete without the mutual assent of all the necessary parties to all its terms.

7. VENDOR AND PURCHASER--Requisites of Contract--Offer and Acceptance. An offer to sell imposes no obligations till it is accepted according to its terms.

8. SAME. A proposal to accept or an acceptance of an offer of sale on terms varying from those offered is a rejection of the offer.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by S. Atwood against Mrs. Forster Rose and another. Judgment for defendants, and plaintiff brings error. Affirmed.

Dumars & Vaught and Rolin E. Gish, for plaintiff in error.

Shartel, Keaton & Wells, for defendants in error.

BREWER, C.

¶1 This is a suit for specific performance of a contract to sell land. It was filed in the district court of Oklahoma county on the 31st day of July, 1909. A motion to make more definite and certain being sustained to the first amended petition, the second amended petition was filed, to both counts of which a general demurrer was sustained.

¶2 The main question to be decided in the case being as to whether or not the second amended petition states facts sufficient to constitute a cause of action, we here insert the material parts of said amended petition, as follows:

"That on the 26th day of July, 1909, the defendants, Mrs. Forster Rose, a widow, and James Stanton, owned in fee and were in possession of lots 1, 2, 3, and 4, in block numbered 1, Orchard Park addition to Oklahoma City, Okla. That the Standard Investment Company, composed of J. W. Wagnon and D. B. Ellis, were the authorized agents of the said defendants to sell the above-described property, and that said authority to sell was in writing and subscribed by said defendants; said authority in writing consisting of numerous letters and telegrams from the said defendants, Mrs. Forster Rose and James Stanton, to the said J. W. Wagnon, and from the said J. W. Wagnon to the said Mrs. Forster Rose and James Stanton, copies of which letters are herewith attached and marked Exhibits 'B,' 'C,' 'D,' 'E,' 'F,' 'G,' 'H,' 'I,' 'J,' and 'K.' That the said defendants on the said date of July 26, 1909, through their authorized agent, J.W. Wagnon, made an agreement in writing with this plaintiff whereby they agreed to sell and convey by good and sufficient warranty deed, said premises, in consideration of the sum of $ 20,000, to be paid them by the plaintiff as follows: $ 1,000 in hand paid on said date; the sum of $ 9,000 to be paid upon the execution of the deed from said defendants; and the balance of $ 10,000 to be paid in equal installments on the 1st day of March, 1910, and the 1st day of March, 1911, respectively. That said agreement in writing was made in form of checks and receipt. That said receipt was executed on said day by the said J. W. Wagnon as the agent of the said defendants, acknowledging the receipt of $ 1,000 and stating the conditions of said sale on the face of said receipt, a copy of which is herewith filed and marked Exhibit 'A' to this petition. Second. That the plaintiff has performed all the conditions precedent on his part, and on the 26th day of July, 1909, paid to the said J. W. Wagnon, as the agent of said defendants, the sum of $ 1,000, and hereby tenders to the defendants the sum of $ 9,000, and offers to execute mortgage and notes as agreed upon in said contract. That plaintiff has demanded of the said J. W. Wagnon, as the agent of the said defendants, a conveyance of said property to him; but the said defendants then through their said agent, and ever since, have refused to execute and deliver said conveyance. Third. That the plaintiff has always been ready and willing, and still is, to pay said purchase money and to execute said notes and mortgage as agreed upon, and herewith tenders the same into the court for the use and benefit of defendants.

"Second cause of action: For the second cause of action, plaintiff states: First. He repeats and realleges all the matters set forth in paragraph 1 as fully as if specifically set out and incorporated therein. Second. That the plaintiff has duly performed all the conditions precedent on his part. That on or about the 26th day of July, 1909, plaintiff paid to the said defendants the sum of $ 1,000 and requested an immediate execution by the said defendants of a deed to the premises hereinbefore mentioned, but that the defendants thereafter refused and do now refuse to execute the said deed. That the plaintiff was at all times and still is, ready and willing to pay the said purchase money and execute the said notes and mortgage as agreed upon, and that by the refusal of the defendants to perform their part of the contract as aforesaid plaintiff has been damaged in the sum of $ 10,000."

¶3 We copy only such parts of the correspondence, which is lengthy, as are material here:

Exhibit B: "July 22, 1909. Mrs. Forster Rose, Galveston, Texas--Dear Madam: The parties who have been figuring on buying your property on West Main street for $ 25,000.00 on terms of $ 8,000.00 down and the balance in five or six years time at 8% interest on the deferred payments claim they cannot figure this property out as a good investment, etc. * * * Am now figuring with another party by the name of Mr. Atwood. I have shown this property to Mr. Atwood and his son-in-law and they have made me an offer $ 20,000.00 on terms of $ 10,000.00 cash, $ 5,000.00 on or before March 1, 1910; and the other $ 5,000.00 on March 1, 1911; with 8% interest on the deferred payments. Mr. Atwood and his son-in-law also stated that they would give all of the $ 10,000.00 of the balance in cash to you on March 1st, 1910, providing you would not wish to carry as much as $ 5,000.00 for one year. I will also state that Mr. Atwood noticed that some of the outside walls of the building were cracked and he does not consider the building cost over nine or ten thousand dollars, and he does not figure the lots are worth over nine thousand dollars on the present market price. In other words, he feels that he is giving all the property is worth on his offer of $ 20,000.00, and unless we can accept of his offer, he has other property that he is going to buy. I know that it will be useless for us to try to get more than $ 20,000.00 from Mr. Atwood, and he insists that we let him know at once whether his offer will be considered. I have promised Mr. Atwood that you will telegraph me either Saturday of this week or Monday of next week, whether his offer would be accepted or rejected, and if rejected, Mr. Atwood as stated above, will then buy another piece of property that he is now figuring on. I presume that you understand from what has been stated above that you can if you desire, get $ 10,000.00 cash and all of the balance in cash not later than March 1st, of next year. I only wish that Mr. Stanton was here and we could take this matter up in person with him, etc. * * * I really consider this offer of sufficient importance to you to justify a careful investigation and consideration before turning same down. Also, to show you how I feel about this matter I am willing to charge only $ 300.00 commission in case you decide to accept of Mr. Atwood's offer of $ 20,000.00. * * * Please do not forget to telegraph me not later than next Saturday or Monday, as we cannot hope to hold Mr. Atwood any longer than that time. Very truly yours, J. W. Wagnon."

Exhibit C: "Galveston, Texas, July 24, 1909. Mr. J. Wagnon. Oklahoma City, Okla.--Dear Sir: Yours of the 22nd received. In reply will say, Mr. Stanton is still in Canada, etc., * * * for my part I am willing to accept Mr. Atwood's offer, but of course, cannot answer for Mr. S. Am

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