Froage v. Webb
| Decision Date | 15 May 1917 |
| Docket Number | Case Number: 8000 |
| Citation | 165 P. 150,65 Okla. 149,1917 OK 232 |
| Parties | FROAGE et al. v. WEBB. |
| Court | Oklahoma Supreme Court |
¶0 1. Limitation of Actions--Demurrer--Bar of Limitations. The first paragraph of the syllabus in Fox v. Ziehme et al., 30 Okla. 673, 120 P. 285, adopted herein.
2. Limitation of Actions--Pleading--Demurrer to Evidence--Question for Jury. In an action for damages for breach of an oral contract, where it appears from the face of the petition that the cause of action accrued more than three years prior to the day of commencing the action, and it is not alleged in the petition or established by the testimony that there was "an acknowledgment of an existing liability," in writing, "signed by the parties to be charged," within the three-year statutory period of limitation, held (1) that it was error to overrule the demurrer to the petition; (2) to overrule the demurrer to the evidence; and (3) that the question of whether the action was barred was a question of law for the court, and not a question of fact for the jury.
C. B. Leedy, for plaintiffs in error.
Frank B. Grant, for defendant in error.
¶1 The controlling question presented upon this appeal is whether or not the cause of action sued upon was barred by the statute of limitations at the time of the commencement of the action. The question was raised, first, by demurrer to the petition; second, by answer, and, third, by demurrer to the evidence, and as often as raised was denied by the court, and finally submitted to the jury for decision. The action was based upon a claim for damages, charged to have arisen from the breach of an oral contract. It is charged in the petition that on May 1, 1909, Webb entered into an oral agreement with Froage and Meyers by which they undertook to "put down a good and sufficient well" upon his land, and also agreed "to furnish the casing and all other things necessary to make it a good and sufficient well," and that Webb agreed to pay them 80 cents per foot when the well was finally completed; that they entered upon the performance of this contract, and sunk a well 257 feet, and equipped it with casing and pump, and represented that it was completed according to contract. It is further charged:
"That this plaintiff paid to these defendants the sum of $ 205.60 upon the completion of said purported well, and afterwards notified these defendants that they must complete said purported well, and make it a well, as they agreed to do, and these defendants agreed so to do, but utterly failed to fulfill the promises thus made, and after trying for a long time to induce these said defendants to furnish him a well, as they had agreed to do, this plaintiff was compelled to hire, in May, 1914, one Caufmann to complete said well, and to pay the further sum of $ 80 therefor."
¶2 It is further charged that, by failure of the defendants to perform their contract, Webb was forced to complete the well, and in so doing incurred an expense in the sum of $ 299.35, for which amount judgment was prayed. After the demurrer to the petition had been overruled, and in response to a motion to make more definite and certain, an amendment was filed, setting out that the well was completed on the 19th day of May, 1910, and was accepted and paid for by Webb on the 21st day of May, 1910. Webb testified that when he accepted the well on the 21st day of May, 1910, and paid for it, it was apparently satisfactory, and so continued for...
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Ray v. Okla. Furn. Mfg. Co.
...of limitation. The demurrer was properly overruled, but should have been sustained if that payment had not been so alleged. Froage v. Webb, 65 Okla. 149, 165 P. 150; Webb v. Logan, 48 Okla. 354, 150 P. 116; Fabric Fire Hose Co. v. Town of Afton, 95 Okla. 298, 219 P. 680; Brant v. Brankle, 8......
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Johnson v. State
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Russell v. Beutelschies
...to raise the question. M., K. & T. Ry. Co. v. Wilcox, 32 Okla. 51, 121 P. 656; Martin v. Gassert, 40 Okla. 608, 139 P. 1141; Froage v. Webb, 65 Okla. 149, 165 P. 150; Raymer et al. v. Comley Lbr. Co., 169 Okla. 576, 38 P.2d 8. ¶12 The judgment of the trial court is affirmed. ¶13 McNEILL, C.......
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