Burke v. Smith
| Decision Date | 11 April 1916 |
| Docket Number | Case Number: 6349 |
| Parties | BURKE v. SMITH. |
| Court | Oklahoma Supreme Court |
¶0 1. VENDOR AND PURCHASER-- Construction of Contract--Sales in Gross. Sales of real estate in gross are properly divided into four classes: First, sales strictly and essentially by tract, without reference in the negotiation or in the consideration to any estimated or designated quantity of acres; second, sales of the like kind, in which, though a supposed quantity by estimation is mentioned or referred to in the contract, the reference was made only for the purpose of description, and under such circumstances or in such manner as to show that the parties intended to risk the contingency of quantity, whatever it might be, or how much so ever it might exceed or fall short of that which was mentioned in the contract; third, sales in which it is evident from extraneous circumstances of locality, value, price, time, and the conduct and conversations of the parties that they did not contemplate or intend to risk more than the usual rates of excess or deficit in similar cases, or than such as might be reasonably calculated on as within the range of ordinary contingency; fourth, sales which, though technically deemed and denominated sales in gross, are, in fact, sales by the acre, and so understood by the parties. Contracts belonging to either of the two first-mentioned classes, whether executed or executory, should not be modified by the chancellor when there has been no fraud.
2. SAME--Remedies of Purchaser--Nature and Form. A person induced by false and fraudulent representations to purchase or exchange for property has three remedies. He may: First, upon discovery of the fraud, rescind the contract absolutely, and sue in an action at law, and recover the consideration parted with upon the fraudulent contract, and in such case he must restore, or offer to restore, to the parties sued whatever he has received by virtue of the contract; or, second, he may bring an action in equity to rescind the contract, and in such case it is sufficient for plaintiff to restore, or make offer in his petition to restore, everything of value which he has received; or, third, he may affirm the contract, retain that which he received, and bring an action at law to recover the damage sustained by reason of his reliance upon the fraudulent representations.
3. APPEAL AND ERROR--Presenting Question in Lower Court--Form of Action. Where the parties treat the action in the court below as one at law, on appeal the case will be treated as one at law by the Supreme Court.
4. TRIAL--Taking Case From Jury--Direction of Verdict. In an action at law, where there are controverted questions of fact necessary for a determination of the case, it is error to direct a verdict.
5. EVIDENCE--Documentary Evidence--Authentication. Same as Comanche Merc. Co. v. McCall, 52 Okla. 782, 153 P. 675.
Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge.
Action by L. J. Smith against J. R. Burke. Judgment for plaintiff, and defendant appeals. Reversed.
J. H. Woods and West, Hull & Hagan, for plaintiff in error.
Paul F. Cooper and Edward Howell, for defendant in error.
¶1 L. J. Smith sued J. R. Burke, alleging, in substance, that he bought a tract of land from Burke through one Owenby, "purporting to act as agent of plaintiff," and that he paid $ 1,000 as part of the purchase price. He further alleged, as his first cause of action, that Burke and his agents (without naming them) made representations that the tract contained about 40 acres, intending that such representations should reach plaintiff; that said representations were communicated to plaintiff and acted upon by him in the purchase of the land; that said land contained only 19 and a fraction acres; that his consent to the contract of sale was given by mistake; and that upon discovering the amount of the land contained in the tract he disaffirmed the contract and demanded the return of his money, which was refused, and he was entitled to rescind and to recover $ 1,000, whether defendant knew the number of acres in said tract or not. He further alleged that he had never had possession of the land and offered to execute a quit-claim deed. The allegations of the second cause of action are largely the same as those of the first, except that it is alleged in the second cause of action that the defendant (no reference being made to any agent) made the representations and that they were false, and when made were to the defendant known to be false.
¶2 Answering, the defendant denied that he made any representations whatever in regard to the acreage of the tract of land sold, and alleged that he did not know what it contained, and by way of cross-petition asked for a recovery of the balance of the purchase price due. Upon a trial a jury was called, without objection, and the evidence of both sides adduced. There was much testimony pro and con touching upon the question of whether Owenby was the agent of the plaintiff or of the defendant. At the close of the testimony counsel for plaintiff moved for a directed verdict, and the court instructed the jury to return a verdict for the plaintiff for $ 1,000, to be made a lien upon the land; defendant to have the land subject to such lien. The verdict was duly returned as directed, and judgment rendered thereon, motion for new trial filed and overruled, and the defendant brings the cause here for review. The trial court directed the verdict upon the theory, as stated by him:
¶3 That there was
¶4 It is not seriously contended by either party that the judgment of the trial court can be supported upon the reasons given by him. The evidence tended to show that Owenby, a real estate agent in Shawnee, had a conversation with R. J. Burke, father of the defendant, John R. Burke, in which the father asked Owenby to sell certain land for him, including that here involved, and gave him a written list, purporting to be signed by John R. Burke, which contained a description of the land conveyed and the words "containing 40 acres more or less." There was some evidence tending to show that John R. Burke, the defendant, might have known that his father had assumed to list this land with Owenby, and had made no objection thereto. The evidence further tended to show that Owenby had taken up the proposition with L. J. Smith, and that during the course of the negotiations he had represented to Smith that the tract contained 40 acres more or less; that he and Smith's brother had had a conversation with the elder Burke, in which he told them, in substance, that he would guarantee that the area of the tract would not vary from 40 acres more than one acre. During the course of the negotiations, however, Owenby's status as agent for John R. Burke (if he was ever such) undoubtedly changed to that of agent for the purchaser, Smith. The case presents the wholly improper and anomalous situation of one person attempting, at various times, to act as agent for two opposing parties, or at least asserting that he so acted. The testimony showed that the relations between Owenby and Smith were very intimate, and that Owenby had been acting for Smith in other matters. It appeared that during the course of the transaction Owenby and Smith's brother, who at no time was the agent of any one but Smith, went to the tract of land and endeavored to ascertain its acreage by stepping off the boundaries, and that Owenby wrote Smith that he would "report" to him the exact acreage, and later he advised him that there were 47 acres or more. He also, in one of his letters to Smith, uses the language "if we can close the deal with him." Smith upon his examination was asked the following question: "And Owenby and your brother were looking after the deal for you?" To which he replied: "Yes, sir; kind of looking out for it." Later, in response to a very leading question, he attempted to somewhat modify this answer. The record also shows that in the letter to the bank where the deed and money were deposited, he referred to "Mr. M. K. Ownby, who made the deal for me." The evidence further showed that, having finally agreed upon a price, a written contract of sale was entered into by Burke upon the one side and "M. K. Owenby, agent," on the other. It is conceded that in this transaction of the contract Owenby acted for Smith. Thereafter Burke paid Owenby a commission for making the deal. It thus appears that the relationship of Owenby to the transaction was inextricably mixed, and that whether or not he was acting for Smith or Burke at any particular time could not be found, as the court said, upon uncontradicted evidence. The evidence further tended to show on behalf of the defendant that Owenby and Smith's brother had come to him and asked how many acres there were in the tract, and that he told them positively that he did not know, and that they would have to go and measure it...
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