Cloud v. Winn, 37251
| Decision Date | 09 October 1956 |
| Docket Number | No. 37251,37251 |
| Citation | 303 P.2d 305,1956 OK 267 |
| Parties | Robert E. CLOUD, Plaintiff in Error, v. Francis W. WINN, Melvin J. Hughey and the State National Bank, Weleetka, Oklahoma, a corporation, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Before there can be an agreement, there must be a meeting of the minds of
parties on matter attempted to be agreed on and no contract can be said to have been created where their minds have not met on one and the same thing.
2. In order that an instrument may operate as an escrow when delivered to one not a party to the instrument, to be delivered in turn to a party to the instrument upon the performance of certain conditions, there must be a valid contract between the parties as to the subject matter of the instrument and the delivery, and in the absence of such a contract the party making the delivery may recall the instrument.
3. The mere execution of an assignment of an interest in an oil and gas lease by the owner thereof and the deposit of the same with a third party, with directions to deliver to the assignee upon payment of the purchase price, is not a delivery in escrow and is insufficient to take the contract for the sale of such assignment out of the provisions of the statute of frauds as against an alleged purchaser.
4. A court of equity will not award specific performance of an alleged contract where any material part of said alleged contract is optional to the party seeking performance.
5. Record and evidence examined and found sufficient to sustain the judgment of the trial ocurt, and the same is affirmed.
Appeal from the District Court of Okfuskee County; Jess I. Miracle, Judge.
An action by Robert E. Cloud against Francis W. Winn, the State National Bank of Weleetka and Melvin J. Hughey, President of the bank, to enforce an alleged escrow agreement and contract, partly oral and partly written, for the sale and assignment of a one-fourth interest in an oil and gas lease, and to recover $10,000, the sale price of the assignment, which sum and assignment are alleged to have been placed in escrow. Judgment for the defendants and plaintiff appeals. Affirmed.
Marvin T. Johnson, Tulsa, for plaintiff in error.
Leon C. Phillips and Martin L. Frerichs, Okemah, for defendants in error.
Robert E. Cloud instituted this action in the District Court of Okfuskee County against Francis W. Winn, Melvin J. Hughey and the State National Bank of Weleetka, Oklahoma, a corporation, wherein plaintiff prays specific performance of an alleged contract for the sale and purchase of an assignment of an oil and gas lease covering a one-fourth interest in 40 acres of land, and to recover the sale price of the assignment in the sum of $10,000. Service of Summons was had on the defendant Winn by publication, and he filed motion to quash the summons, which motion was overruled, with exception, and defendant filed his answer. Upon a trial of the issue before the court, without a jury, the defendants demurred to plaintiff's evidence, ruling thereon being reserved, and at the conclusion of all the evidence the court overruled the demurrer on behalf of the defendants and then rendered judgment for the defendants upon the evidence and law, to which ruling the plaintiff excepted and gave notice of appeal to this court. We shall refer to the parties by name, or as plaintiff and defendants, as they appeared in the trial court.
It was alleged by plaintiff that about March 28, 1954 he and the defendant, Francis W. Winn, entered into a contract, partly oral and partly written, by the terms of which the plaintiff agreed to sell and the said defendant agreed to purchase an undivided one-fourth interest in and to a producing oil and gas mining lease on 40 acres of land in Okfuskee County for a consideration of $10,000, upon completion of certain drilling and the payment by plaintiff of his proportionate part of the costs in the sum of $2,319.79 and proof of the payment of all bills, and alleged that plaintiff had complied with such terms; that the defendant Winn on March 28, 1954 deposited in escrow with the defendants, The State National Bank of Weleetka and Melvin J. Hughey, President of said bank, the sum of $10,000 as earnest money to pay the purchase price of said assignment; copy of a letter dated March 28, 1954 from the defendant Winn in Alhambra, California to the defendants Hughey and the said bank was made a part of plaintiff's petition. In the said letter the writer referred to an enclosed $10,000 check to be placed in escrow pending the delivery by Robert E. Cloud of Independence, Kansas of a valid assignment of an interest in the oil and gas lease, and stated that Mr. Cloud was to pay $2,319.79 as his share of the drilling costs of a well and furnish proof that certain other bills aggregating the sum of $1,406.91 were paid, and that all oil or gas produced and sold from the property was to be paid to Francis W. Winn.
The plaintiff Cloud further alleged in his amended petition that he had performed all the conditions required of him with respect to the sale of the lease assignment, and that he had deposited the assignment in the State National Bank of Weleetka, a copy of the assignment being attached, and that the defendant Winn refused to pay the consideration agreed to be paid therefor, and that the defendants, Hughey and The State National Bank, permitted the defendant Winn to withdraw the $10,000 escrow deposit, contrary to the terms thereof, without the knowledge and consent of the plaintiff, and prayed judgment against the defendants, directing that the escrow deposit be restored; that plaintiff have judgment for specific performance, requiring the agent to pay the plaintiff the sum of $10,000, and all proper relief.
The plaintiff, pursuant to motions to make his petition more definite and certain, filed amendments thereto wherein he alleged in substance that there was a written agreement for the purchase of the assignment dated March 22, 1954 between the defendant Winn and himself and alleged that such agreement had been cancelled and abandoned, and that the only contract between the parties was the escrow agreement of March 28, 1954, as alleged and set forth in plaintiff's original petition.
The defendants, The State National Bank of Weleetka and Melvin J. Hughey, President of said bank, answered generally denying the allegations of plaintiff's petition, and specifically denied that they entered into any agreement with the plaintiff to hold in escrow any property for him and the defendant Winn, that the only agreement between plaintiff and Francis W. Winn, of which they had any knowledge was an option contract dated March 22, 1954, a copy of which was attached and made a part of the answer. They further alleged in their answer that on March 31, 1954 the plaintiff Cloud presented to them a purported assignment of an oil and gas lease, and advised them that in the event Francis W. Winn wanted to receive it it was to be delivered to him if he decided to pay $10,000 for it, and alleged that said conversation did not create an escrow agreement, and further alleged that the claim of the plaintiff was void and in violation of the Statute of Frauds, which defendants pleaded as a bar against plaintiff's claim.
The defendant, Francis W. Winn, answered denying the allegations of plaintiff's petition and alleged that on March 22, 1954 he secured an option, which he never exercised, which option is referred to in plaintiff's petition as having been cancelled and abandoned, and further alleged that at no time did he enter into any other contract with reference to such property, and denied that he entered into any escrow agreement with defendant bank, and that any claimed contract is void because contrary to the Statute of Frauds, and alleged that he did not owe plaintiff anything and that no proper service had been had upon him.
The plaintiff in error presents his assignments of error and argument on the one general proposition:
'The trial court erred in disregarding the evidence of plaintiff and rendering judgment for defendants',
and in support of his proposition, after referring generally to the evidence, cites the case of Humphrey v. Taylor, 106 Okl. 38, 233 P. 180, which holds 'Specific performance may be had of a written contract for the sale of certain oil and gas royalty rights therein specified, where the terms of said contract, including the consideration, are certain and definite, and the party seeking such relief has made a timely tender of due performance.'
As above indicated, the terms of the agreement in the cited case were definite and certain, both parties agreed thereto, and the party seeking relief made timely tender of performance. The record in the present action shows a much different state of facts, and the issues are more complex. The same may be said with respect to the case of Creeden v. North, 160 Okl. 90, 15 P.2d 991, which is cited by plaintiff. In that case the terms of the agreement were signed by both parties, and it is held that the obligation did not terminate with the death of one of the parties.
The case of Eason v. Walter, 118 Okl. 37, 246 P. 865, cited by plaintiff, involved the sale of an oil and gas lease placed in escrow by agreement of both parties, and it is there held that the lessor acquired no right in the money deposited until the conditions were performed, and where no specific time is fixed for performance a reasonable time is allowed.
The case of Burford v. Bridwell, 199 Okl. 245, 185 P.2d 216, also cited by plaintiff, involved the recovery of a $500 deposit in escrow as part of the purchase price of real estate, to which a deed had been executed and deposited with the bank, and it is there held that the vendee could not recover his deposit on the ground of invalidity of the agreement where vendor is ready, willing and able to perform.
...
To continue reading
Request your trial
-
Bobo v. Bigbee
...Petroleum Corporation, 190 Okl. 548, 126 P.2d 57 (1942); Sohio Petroleum Company v. Brannan, 205 Okl. 1, 235 P.2d 279 (1951); Cloud v. Winn, 303 P.2d 305 (Okl.1956). Also see Rude v. Levy, 43 Colo. 482, 96 P. 560 (1908); Columbia Savings and Loan Association v. Counce, 167 Colo. 365, 447 P.......
-
Sperling v. Marler
...case had not only the payment of the purchase price remaining, but the purchaser's acceptance of the conveyance as well. ¶9 Cloud v. Winn, 1956 OK 267, 303 P.2d 305 also considered the issue of part performance in evaluating the validity of a partly written, partly oral contract for the sal......
-
UNITED STATES, ETC. v. Buckner & Moore, Inc.
...it is essential that the minds of the parties meet upon all essential elements of the agreement sought to be enforced. Cloud v. Winn, 303 P.2d 305 (Okl.1956); Frazier v. Powell, 169 Okl. 537, 37 P.2d 920 From the evidence presented, the Court finds and concludes that the Third Party Defenda......
-
A. K. McBride Const. Co. v. Arkhoma Steel Erection Co.
...a special finding on any and all issues necessary to sustain the judgment. Anderson v. Hill, 205 Okl. 561, 239 P.2d 1016; Cloud v. Winn, Okl., 303 P.2d 305; Staner v. McGrath, 174 Okl. 454, 51 P.2d 795; Rain v. Balph, Okl., 293 P.2d 359; Wahby v. Renegar, 199 Okl. 191, 185 P.2d Where a jury......