Edwards v. Phillips

• Decision Date: 30 April 1918
• Docket Number: Case Number: 8581
• Citation: Edwards v. Phillips, 172 P. 949, 70 Okla. 9, 1918 OK 245 (Okla. 1918)
• Parties: EDWARDS v. PHILLIPS.
• Court: Oklahoma Supreme Court

1918 OK 245

172 P. 949

70 Okla. 9

EDWARDS v. PHILLIPS.

Case Number: 8581

Supreme Court of Oklahoma

Decided: April 30, 1918

Syllabus

¶0 Appeal and Error--Frauds, Statute of--Theory of Case Below--Description of Real Estate.

The parties upon appeal are bound by the same theories upon which they tried their case in the lower court, and, applying that rule to the case at bar, it is held, that the description of the real estate embraced in said contract is sufficient to take the transaction without the statute of frauds, and that the contract is valid, binding, and enforceable.

Error from District Court, Oklahoma County; John W. Hayson, Judge.

Action by W. T. Phillips against R. J. Edwards. Judgment for plaintiff, and defendant brings error. Affirmed.

Keaton, Wells & Johnston, for plaintiff in error.

Riddle & Hammerly and Lawrence Mills, for defendant in error.

HOOKER, C.

¶1 This case was tried by the parties in the lower court upon the sole theory as to whether the contract constituting the basis of the action alleged to have been entered into by and between Edwards and Griffin was an enforceable contract under the statute; the plaintiff below, Phillips, contending that it was an enforceable contract, and that therefore Edwards was liable to him for his commission, and the defendant below, Edwards, contending that the real estate agent was not entitled to his commission for the reason he had not caused the intended purchaser to enter into an enforceable contract. The case will be considered here upon that theory. Therefore it follows that if the contract was within the statute of frauds on account of the insufficient description of the property intended to be conveyed by Edwards to the purchaser, Griffin, then the plaintiff in error is entitled to prevail here, and if the description of said property in said contract is sufficient, then the defendant in error must prevail. This court has held in a number of cases that the parties are bound by the theories upon which their cause was tried in the lower court, and the rule will be adhered to here. See Queen Ins. Co. of A. v. Cotney, 25 Okla. 125, 105 P. 651; Herbert v. Wagg, 27 Okla. 674, 117 P. 209: Checotah v. Hardridge, 31 Okla. 742, 123 P. 846; Watson v. Taylor, 35 Okla. 768, 131 P. 922; Bank v. Hinkle, 65 Okla. 62, 162 P. 1092.

¶2 The description of the property in said contract is as follows:

"Party of the first part agrees to sell and deliver to second party and convey by general warranty deed to second party 975 acres of land, more or less, situated in Grady county, Oklahoma, in sections 26-27, 34 and 35 in township 7, north of range 6 west, and known as the 'Beeler Farm.' * * *

"The party of the second part agrees and binds himself * * * to deliver good and sufficient title to said first party to a two story brick building in Foss, Oklahoma, and to a one-story brick business house, and a two-story residence in Foss, Oklahoma: same being the property heretofore inspected by the first party."

¶3 The plaintiff in error defended this action in the lower court upon the theory that this description was insufficient. and he has urged here the same proposition that the contract was not an enforceable one, and therefore he is not liable for the commission. The defendant in error prosecuted his action in the court below upon said theory that this contract was an enforceable one, and the cause was tried and the jury instructed along this theory, and the verdict of the jury under the instructions of the court was based upon the theory that the contract was an enforceable one.

¶4 The only question necessary, as we view it, to determine, is whether this is an enforceable contract under the statute of this state; that is, whether the contract is within the statute of frauds. In 36 Cyc. 591, the author says in dealing with the question of specific performance:

"The description must be such as to enable the court to determine with certainty, with the aid of such extrinsic evidence, as is admissible under the rules of evidence, what property was intended by the parties to be covered thereby. The description need not be given with such particularity as to make a resort to extrinsic evidence unnecessary. Reasonable certainty is all that is required. Extrinsic proof is allowed in order to apply, not to alter or vary, the written agreement."

¶5 In Woods on the Statute of Frauds, § 353, page 680, it is said:

"It is not necessary that the agreement should contain a very precise description of the property to be sold, as parol evidence is admissible to identify it, where the memorandum or note contains sufficient data to apply the description to the subject-matter by the aid of such evidence, without requiring any aid from such evidence as to the intention of the person sought to be charged, where he owns other property to which the writing might apply. If reference is so made thereto in the memorandum, that it can be applied to the subject-matter of the agreement with reasonable certainty, 'facts existing at the time of making the agreement may,' said Wigram, V. C., be admissible to assist the court in determining the meaning of the language, an act done or letter written at the time material to the right interpretation of the agreement. * * *' If the note or memorandum does not contain either in itself, or by reference to any other writing, the means of identifying the property, it is insufficient. * * * But where the writing within itself or by reference to other writings contain sufficient data, so that by the aid of parol evidence no question as to the intention of the party can arise, it is sufficient. Thus a memorandum describing the property as 'my estates' located in certain towns is sufficient, if it is shown that the party owned no other estates in the towns named, because the writing can be definitely applied to the subject-matter, by the aid of parol evidence without raising any question as to the real intention of the party, except such as is apparent from the writing itself. So such descriptions as 'the land bought of Mr. Peters,' 'Mr. Ogilvie's house,' 'the property in Cable street,' or 'a house on Church street,' or 'the house in Newport,' 'my house,' 'the intended new public house at Putney,' 'the mill property, including cottages in Esher village,' have been held to be sufficient. A description of the property in a title bond, as 'a steammill and distillery, with all the machinery,' etc., 'situate in the county of Smith, and state of Tennessee, near the village of Rome, in civil district No. 13, on the banks of the Cumberland river, supposed to contain one and a half acres of land,' was held to be sufficient, and parol evidence to be admissible for the identification of the premises. So a written contract to convey a house on a certain street named is a contract to convey the house of the grantor there, and is sufficiently definite within the statute; and if it is shown aliunde that there are other houses on that street, it may be shown that there is no other owned by the grantor. * * * A memorandum describing the estate in this form was also held sufficient: 'Ellsworth, Dec. 15, 1854; received of D. B. and C. S. C. $ 1,000, to be accounted for, if they shall furnish me satisfactory security for certain lands on the Naragaugus rivers, said 119,000 acres for $ 113,000 on or before Friday morning next; otherwise to be forfeited. John Black'--because in such a case parol evidence is admissible to show what land John Black owned on the river named, and that he owned no other land there than that described. In order to render a written contract for the sale of real estate binding under the statute of frauds, it is not essential that the description should have such particulars and tokens of identification as to render a resort to extrinsic aid entirely needless when the writing comes to be applied to the subject-matter. The terms may be abstract and of a general nature, but they must be sufficient to fit and comprehend the property which is the subject of the transaction; so that with the assistance of external evidence the description, without being contracted or added to, can be connected with and applied to the very property intended and to the exclusion of all other property. The circumstances that in any case a conflict arises in the outside evidence cannot be allowed the force of proof that the written description is in itself insufficient to satisfy the statute. Whether the description answers the requirement of the statute is a question which occurs on the face of the papers, and is naturally preliminary to the introduction of testimony to connect the contract with the property, and the decision of it would regularly seem to be required on an inspection of the documents, and before the arrival of opportunity for any conflict of the kind referred to. Moreover, it would hardly be deemed reasonable to allow the validity of the written description to depend on the ability of a party to bring about a conflict in the outside testimony. If the description is such that it can be identified beyond a doubt, it is sufficient. * * * But there is a tendency to relax the rigor of the rule as to the admissibility of parol evidence in such cases, and where the not or memorandum contains sufficient date, so that it can, with the aid of parol testimony, be certainly applied to the land, it is, in some of the states, held to be sufficient. Thus in a Massachusetts case, S., in a writing signed by himself and P., agreed to convey to P. 'my estates located as follows: Three houses in the town of R. as shown this day; two are Frenchroof, and valued

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