Fry v. Penn Mut. Life Ins. Co.

• Decision Date: 05 June 1945
• Docket Number: Case Number: 31787
• Citation: 195 Okla. 507,1945 OK 180,159 P.2d 550
• Court: Oklahoma Supreme Court
• Parties: FRY v. PENN MUTUAL LIFE INS. CO. et al.

1945 OK 180

159 P.2d 550

195 Okla. 507

FRY v. PENN MUTUAL LIFE INS. CO. et al.

Case Number: 31787

Supreme Court of Oklahoma

Decided: June 5, 1945

Syllabus

¶0 1. FRAUDS, STATUTE OF-Contracts relating to real estate required to be subscribed by "party to be charged."

The words "party to be charged" appearing in 15 O. S. 1941 § 136 may refer to the vendor in a transaction involving the sale of real estate.

2. SAME--Statute of frauds may be raised by general demurrer to petition.

The statute of frauds, 15 O. S. 1941 § 136, may be raised under a general demurrer to plaintiff's petition.

3. SAME--Part payment of purchase price insufficient to satisfy statute.

Partial payment of the purchase price is insufficient to satisfy the requirements of 15 O. S. 1941 § 136.

4. SPECIFIC PERFORMANCE--Agent of party to transaction ordinarily not necessary or proper party to action.

Where a person acts merely as an agent for one of the parties to a transaction out of which a suit for specific performance arises, the principal is a necessary and proper party and the agent ordinarily is not a necessary or proper party thereto.

5. JUDGMENT----Dismissal of action with prejudice proper where demurrer to petition on ground same did not state cause of action was sustained and plaintiff elected to stand on petition.

When a demurrer to a petition is filed on the ground that the petition does not state facts sufficient to state a cause of action and such demurrer is sustained by the trial court and the plaintiff elects to stand on his petition, an order may be made dismissing the action with prejudice.

Appeal from District Court, Tulsa County; S. J. Clendinning, Judge.

Action by Gold Fry against the Penn Mutual Life Insurance Company et al. Judgment for defendants, and plaintiff appeals. Affirmed.

Norman Barker, of Tulsa, for plaintiff in error.

R. A. Kleinschmidt and Coakley, McDermott & Gable, all of Tulsa, for defendants in error.

DAVISON, J.

¶1 This cause is presented on appeal from a decision of the district court of Tulsa county. The trial judge sustained demurrers to the petition of the plaintiff and entered its order dismissing plaintiff's action with prejudice.

¶2 The plaintiff has appealed and appears before this court as plaintiff in error. Our continued reference to the parties will be by their trial court designation.

¶3 In plaintiff's amended petition it is asserted that the defendant Penn Mutual Life Insurance Company, a foreign corporation domesticated in Oklahoma, was and is the owner of a tract of land in Tulsa, Okla., 80 feet wide and 100 feet long. That said Penn Mutual Life Insurance Company, through its real estate brokers, Charles Deal and Mell Lewis, offered to sell said real estate for the sum of $25,000. That said real estate brokers contacted the plaintiff, who, at their suggestion and request, signed an "offer to purchase" said property for the sum of $25,000, payable $5,000 in cash and $20,000 to be paid in 120 consecutive monthly installments of $207.28 each.

¶4 It was also alleged in plaintiff's amended petition that plaintiff gave to G. H. Galbreath Company, as agent for the Penn Mutual Life Insurance Company, his check for $250, as good faith money to bind the transaction; that said check was cashed and deducted from plaintiff's bank account. It was likewise alleged that arrangements had been made by the defendant insurance company to pay Charles Deal and Mell Lewis their brokerage commission for selling the property to plaintiff. It is also alleged in the amended petition that the Penn Mutual Life Insurance Company, through its agent, G. H. Galbreath, orally accepted plaintiff's offer to purchase the property.

¶5 Upon these facts the plaintiff in the prayer of his petition sought to compel the defendants to convey the property to him by warranty deed or to procure a conveyance of the property by and through the sheriff of Tulsa county, Okla.

¶6 Each of the defendants presented a separate demurrer to the plaintiff's petition on the theory that the same did not state facts sufficient to constitute a cause of action in favor of the plaintiff.

¶7 On March 16, 1944, the trial court entered its order sustaining each and all of the demurrers and entered the order dsimissing plaintiff's action with prejudice.

¶8 The defendants, in support of the order and decision of the trial court, call our attention to 15 O.S. 1941 § 136, subd. 5, which reads:

"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:

"5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged."

¶9 This court has held that the words "party to be charged," as used in the foregoing statute, may refer to the vendor, which in this case is the Penn Mutual Life Insurance Company. Jennings v. New York Petroleum Royalty Corporation, 169 Okla. 528, 43 P.2d 762; House v. Boylan, 186 Okla. 124, 96 P.2d 532.

¶10 We have also held that the statute of frauds (sec. 136, supra) may be raised by a general demurrer to plaintiff's petition. Barnsdall State Bank v. Dykes, 26 F. 2d 696; Crabtree v. Eufaula Cotton Seed Oil Co., 32 Okla. 465, 122 P. 664; Mason Motors Spirit Distributing Co. v. Cosden, 105 Okla. 244, 231 P. 890.

¶11 In Johnston v. Baldock, 83 Okla. 285, 201 P. 654, we pointed out that part payment of the purchase price was not in itself sufficient to satisfy the requirements of the statute, sec. 136, supra. See, also, Levy v. Yarbrough, 41 Okla. 16, 136 P. 1120; Halsell V. Renfrow, 14 Okla. 674, 78 P. 118, and Bahnsen v. Walker, 89 Okla. 143, 214 P. 732.

¶12 In the case at bar the only instrument alleged to have been executed was an "offer to purchase" executed by plaintiff. No instrument was alleged to have been signed or executed by the Penn Mutual Life Insurance Company authorizing G. H. Galbreath or Deal and Lewis to sell said property. Such an allegation was necessary. 15 O.S. 1941 § 136, subd. 5; Jennings v. New York Petroleum Royalty Corp., supra; House v. Boylan, supra. The only performance of the alleged contract was the payment by plaintiff of $250. Plaintiff did not plead that he took possession of the property.

¶13 Insofar as the action is directed at Mr. G. H. Galbreath, who acted as the agent of the Penn Mutual Life Insurance Company, we think the action of the trial court in sustaining the demurrer as to him must be approved under the rule stated in 58 C.J. 1140, see. 454, wherein it is said:

"Where a person acts merely as agent for one of the parties to the transaction out of which the suit for specific performance arose, the principal is the necessary and proper party to the suit, and the agent ordinarily is not a necessary or proper party thereto, even though he is a party to the contract."

See, also, in this connection, Riedell v. Stuart, 151 Okla. 266, 2 P.2d 929; Osenbaugh v. Virgin & Morse Lbr. Co., 173 Okla. 110, 46 P.2d 952.

¶14 In presenting this cause on appeal the plaintiff, as plaintiff in error, complains of the order of the trial court dismissing his action with prejudice. He claims that the order made should have been without prejudice to another action...