Clay v. Reynolds

• Decision Date: 30 October 1934
• Docket Number: 23502.
• Citation: 37 P.2d 244,169 Okla. 416,100 A.L.R. 192,1934 OK 592
• Parties: CLAY v. REYNOLDS.
• Court: Oklahoma Supreme Court

37 P.2d 244

169 Okla. 416, 100 A.L.R. 192, 1934 OK 592

CLAY v. REYNOLDS.

No. 23502.

Supreme Court of Oklahoma

October 30, 1934

Syllabus by the Court.

1. Where the vendor, pursuant to a parol agreement to convey lands, executes a deed to the vendee and deposits the same in escrow to be delivered to the vendee upon the payment of the balance of the purchase price, and the recitals of such deed contain the terms of the parol agreement, including the consideration, it is a sufficient compliance with the statute of frauds (St. 1931, § 9455).

2. Where a part payment receipt refers to a deed to be executed and delivered, upon the execution and delivery of such deed in escrow, both instruments are properly connected and may be read together and are a sufficient compliance with the statute of frauds (St. 1931, § 9455).

3. The recitals of a part payment receipt and of a deed executed in compliance therewith which describes the subject-matter names the vendor and vendee, and states the consideration is not insufficient as a memorandum by reason of its failure to state the time of payment, as such omission is supplied by section 9481, Oklahoma Statutes 1931 (section 5060, C. O. S 1921).

Appeal from District Court, Payne County; Freeman E. Miller, Judge.

Action by Jack Reynolds against R. J. Clay for damages for breach of contract. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wilcox & Swank, of Stillwater, for plaintiff in error.

Brown Moore, of Stillwater, for defendant in error.

PER CURIAM.

This cause comes here on appeal from the district court of Payne county, Okl. The plaintiff in error, R. J. Clay, was the defendant, and the defendant in error, Jack Reynolds, was the plaintiff, in the trial court, and will be referred to in this opinion as they appeared in the trial court. The record discloses the following facts: The defendant in error, R. J Clay, became the owner of a piece of land situated just east of the city of Cushing, on highway No. 33, and particularly described in the pleadings. He acquired title to said real estate by being the winner at a raffle conducted by the Junior Chamber of Commerce of Cushing, Okl. Shortly thereafter, the plaintiff, Jack Reynolds, being desirous of purchasing the real estate, constituted Harry Riley his agent for the transaction. Reynolds at that time being a traveling salesman necessitated his absence from Cushing a greater part of his time. On October 22, 1930, the defendant, Clay, entered into an agreement for the sale of said real estate to the plaintiff, Reynolds, for a total consideration of $500, of which $100 was paid in cash on that date and the balance of $400 was to be paid at the time the deed to the property was ready for delivery. It was admitted that the defendant Clay on that date executed a receipt in words and figures as follows:

"Cushing, Okla.

October 22, 1930

Received from Mr. Harry Riley, $100.00 to apply on purchase of lots drawn by R. J. Clay, the balance of $400.00 to be paid at time deed is ready for delivery.

R. J. Clay."

It is undisputed that Roy Smaltz, cashier of the First National Bank of Cushing, was made escrow agent. The defendant, Clay, admits that he, joined by his wife, executed a deed to the land in question in favor of Reynolds and placed it with the escrow agent on October 31, 1930. That deed contained a particular description of the land to be conveyed, the names of the parties grantors and grantee, and the consideration for said conveyance. On November 5, 1930, the plaintiff, Reynolds, as grantee, placed two checks of $200 each with the escrow agent, and then left on one of his business trips. Later, returning to Cushing, he discovered on Monday, November 10, that the deed was in the bank. It is disputed as to what then happened, but the jury's verdict supports the contention of the plaintiff, Reynolds, that he made the statement that he would go to Stillwater and have an abstract prepared and would then take up the deed. This was prevented by the defendant, Clay, withdrawing the deed from the escrow agent on the evening of November 10, 1930. The defendant, Clay, later sold the land, thus rendering specific performance impossible, and this suit was instituted for damages for breach of contract. Trial to the jury resulted in a verdict in favor of the plaintiff for $200 damages. Timely appeal was perfected by the defendant, Clay, to this court.

Nine assignments of error are set forth in the brief of plaintiff in error as filed herein. In his brief, however, the plaintiff in error states: "In presenting this argument the defendant takes the position that the trial court erred as a matter of law in overruling plaintiff's demurrer to the second amended petition. It also erred in overruling the demurrer of the defendant to the evidence of the plaintiff and these two assignments will be argued together." The case therefore resolves itself into the question as to whether there was sufficient writing evidencing the contract of sale to take the same out of the statute of frauds. A determination of that question decides this case.

This court has definitely adopted the rule that, where the vendor pursuant to a parol agreement to convey lands, executes a deed to the vendee, and deposits the same in escrow to be delivered to the vendee, upon the payment of the balance of the purchase price, and the recitals of such deed contain the terms of the parol agreement, including the consideration, it is a sufficient compliance with the statute of frauds (St. 1931, § 9455). In the case of Schuerer v. Crockett et al., 108 Okl. 218, 236 P. 30, 32, this court, speaking through Mr. Justice Phelps, quoted with approval the language of the Supreme Court of the state of Alabama in the case of Jenkins v. Harrison, 66 Ala. 345, wherein it was said: "A deed, drawn and executed with knowledge of both parties, with the view to consummation of the contract of sale, which, in itself, and of itself, embodies the substance, though not all the details or particulars of the contract, naming the parties, expressing the consideration, and describing the lands, though not delivered, and its delivery postponed until the happening of a future event, is a note, or memorandum of the contract, sufficient to satisfy the words, the spirit, and purposes of the...