Flechs v. Richie

• Decision Date: 19 June 1923
• Docket Number: Case Number: 11404
• Citation: 216 P. 644,1923 OK 392,91 Okla. 95
• Parties: FLECHS v. RICHIE.
• Court: Oklahoma Supreme Court

1923 OK 392

216 P. 644

91 Okla. 95

FLECHS v. RICHIE.

Case Number: 11404

Supreme Court of Oklahoma

Decided: June 19, 1923

Syllabus

¶0 1. Frauds, Statute Of--Sale of Real Estate.

Section 941, Rev. Laws of Okla. 1910, provides as follows: "The following contracts are invalid unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged or by his agent. * * * Fifth. An agreement for * * * the sale of real property, or of an interest therein. * * *"

2. Same--Mere Possession Under Oral Contract--Specific Performance.

Where an oral agreement is entered into, whereby A. agrees to purchase lands from B. and enters into possession, and does not commit irreparable waste or so alter conditions that the parties may be placed in their original positions, mere possession unaccompanied by any partial payment is not sufficient to take the transaction out of the statute of frauds relating to an interest in lands and the court will not decree specific performance of such oral contract.

3. Same--Separable Contracts--Oral Agreement to Purchase Stock of Goods.

Where A. enters into an oral contract for the purchase of lands from B. for a fixed, definite, and certain sum, and in the same oral contract A. agrees to purchase a stock of goods, wares, and merchandise at the invoice price thereof, the court will not decree specific performance of the contract for the sale of such goods, wares, and merchandise.

4. Same--Equity Rules.

He who invokes equity must do equity, and where one desiring to enforce specific performance in equity has failed to comply with the material terms of his contract, and the transaction is tainted with fraud and deception, equity will not decree such specific performance.

5. Interest on Judgments.

Section 1008, Rev. Laws of Okla. 1910, provides: "All judgments of courts of record and justices of the peace shall bear interest from the day on which they are rendered at the rate of six per cent. per annum."

Commissioners' Opinion, Division No. 3.

Error from Superior Court, Okmulgee County; H. R. Christopher, Judge.

Action by M. L. Richie against H. A. Flechs for specific performance. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with instructions.

R. J. Bollman, for plaintiff in error.

Foster & Cooper, for defendant in error.

RUTH, C.

¶1 This action was filed in the superior court for Okmulgee county, by M. L. Richie against H. A. Flechs for specific performance of an oral contract for the purchase of certain lands at a stipulated price, and for a stock of goods, wares, and merchandise, at the invoice price to be thereafter ascertained. The parties herein will be considered as they appeared below.

¶2 The plaintiff in his petition alleges that on December 30, 1918, he was the owner of certain lots in Bartlett, Okla., and was also owner and in possession of a stock of goods, wares, and merchandise kept in a store room on said lots, and was engaged in conducting a general retail store in said building.

¶3 That on December 30, 1918, the defendant Flechs entered into an oral contract with Richie, whereby Flechs agreed to purchase, and Richie agreed to sell to Flechs, the said lands for the sum of $ 750, and Richie further agreed to sell to Flechs the said stock of goods at the invoiced cost price, and the invoiced price was found to be $ 1,288.

¶4 That defendant deposited his check for $ 2,018 in the Citizens' National Bank of Okmulgee, and plaintiff executed his warranty deed to said lands, and a bill of sale for the said goods, wares, and merchandise, and all instruments were placed in escrow in said bank, to be delivered to the respective parties within a reasonable time after an abstract of title to said lands had been delivered.

¶5 That defendant went into possession on December 31, 1918, and on January 18, 1919, plaintiff delivered the abstract of title to the bank, and on January 28, 1919, demanded defendant's check, which delivery was refused by the bank on order of the defendant.

¶6 Plaintiff further alleges that defendant abandoned the premises on January 15, 1919. Plaintiff thereupon prays that defendant be required to specifically perform his contract and pay plaintiff the sum of $ 2,018; that a receiver be appointed pending the litigation, and for general relief.

¶7 Thereafter the defendant filed his demurrer, and alleged that the facts stated did not constitute a cause of action; that plaintiff had a complete and adequate remedy at law, and that the petition did not state facts sufficient to entitle plaintiff to relief in equity.

¶8 The demurrer was, on the 22nd day of April, 1919, overruled, and exception given defendant, who, on June 4, 1919, filed his answer, in which he admits the oral contract for $ 750 for the lands, and the invoice price of the goods, admits going into possession, and admits he vacated the premises on January 15, 1919.

¶9 For further answer defendant pleads the statute of frauds; that the contract was wholly oral; that plaintiff has a complete and adequate remedy at law, and further pleads a failure of consideration in that the plaintiff agreed to pay all outstanding bills on or before January 14, 1919, and breached his contract in that on January 15, 1919, there were outstanding bills as follows: Muskogee Wholesale Grocery Company $ 600; Chamberlain Medicine Company, $ 29.30; and telephone bills of between $ 50 and $ 75.

¶10 Defendant further alleges fraud and misrepresentations by the plaintiff in that plaintiff represented to defendant that the store was doing an average business of $ 2,000 per month, and that the building and stock was insured for $ 1,000 to $ 1,500 for a period of three years from June 1, 1918. That the plaintiff knew that these representations were false, and defendant alleges he relied wholly upon these representations, and was induced to enter into the said oral contract by such false representations; that he would not have entered into the said oral contract or considered purchasing the property or goods, had he known the statements to be false.

¶11 Defendant then alleges he expended $ 686.36 in increasing the stock of goods; that his sales up to January 15, 1919, a period of 16 days, aggregated but $ 475.29, and upon discovering the fraud and deception, and that plaintiff had not paid outstanding debts, he notified the plaintiff that he did then and there rescind the contract, and delivered the keys to the plaintiff, and offered to give plaintiff the additional stock purchased by defendant, amounting to $ 194.07 after deducting the $ 475.29, being the receipts for the 16 days, to which defendant filed his reply.

¶12 The cause came on for trial on October 30, 1919, and in the examination the plaintiff, Richie, admits he told Flechs the store was doing a business of $ 2,000 per month; that the goods were not insured, but the house was insured for $ 700; that he "packed the keys back to their (Flechs') house and left them on the 16th of January, 1919"; that in conducting his business he kept no books of account; had no records of sales except his pass book showing the amount of money deposited in the bank.

¶13 On cross-examination by counsel for defendant, Foster, we find the following:

"Q. Now, then, isn't it true, Mr, Richie, that on pay-day when some of your customers would come in, they would hand you a check covering their full month's wages, say, $ 150, and you would give them change for the difference between the amount of their account and the amount of that check? A. Sure. Q. Then, if I understand you, if one of your customers gave you a check for $ 150, and his account was $ 25, you gave him $ 125 back. A. Sure, I would give him the difference back. Q. Yet, when you made your deposits here, you put in that $ 150 cheek in this total, didn't you? A. Sure. Q. In other words, that showed a $ 150 deposit, didn't it? A. Yes, sir." (The plaintiff also admitted that in order to have change on hand at the time when the employes of the various oil companies came in with their pay checks, plaintiff got money from his brother and also, in one or two instances, borrowed from his son-in-law.) "Q. When you approached Mr. Flechs on the matter of selling him that store, what did you give as your reason for wanting to sell? By Mr. Foster: I think that is incompetent. By the Court: Go ahead and let's get through. A. I don't remember what I did tell him was my reason. Q. That was a pretty good business, two thousand a month? A. Fairly good business for that country. Q. What was your reason for selling? A. Didn't like the grocery business. Q. Didn't you tell him you wanted to get out of the grocery business and go on a farm? A. Yes. Q. You run a store at Young's Town now, don't you? A. No, sir. Q. Don't you own a store in Young's Town? A. Oh, I sold out there, I don't remember the dates, about six or eight weeks ago. Q. Six or eight weeks ago? A. Yes. sir; something like that. Q. When did you buy that store? A. When did I buy it? Q. Yes. A. I didn't buy it, went up there, and built from the ground up, I never did buy nothing but my material. Q. When was that? A. Last March--February or March. Q. February or March? A. Yes, sir. Q. Right after you sold out to Mr. Flechs? A. Right away."

¶14 The plaintiff then testifies that he paid all outstanding bills by check but couldn't find the canceled check; that the house was insured but he couldn't find the policy and did not appear to know what company carried the risk or what agent wrote the policy, and plaintiff further testifies that if Flechs had not taken the keys back "he would have licked him in a minute."

¶15 A portion of the uncontradicted testimony of the defendant is as follows:

"That on January 14, plaintiff came to defendant's house and notified him that plaintiff was ready to close the deal and asked defendant to meet him the next day at the Citizens' National Bank in Okmulgee for the purpose of closing up the transaction."

¶16 Ac...