Gage v. Estep
| Citation | 422 P.2d 449 |
| Decision Date | 15 March 1966 |
| Docket Number | No. 41204,41204 |
| Parties | H. L. GAGE and Laverne Gage, husband and wife, Plaintiffs in Error, v. Odis B. ESTEP and Maggie Estep, husband and wife, Defendants in Error. |
| Court | Supreme Court of Oklahoma |
Syllabus by the Court
1. The rules governing the character of evidence necessary for obtaining specific performance of contract to purchase real estate do not preclude the granting of such relief, where there is a conflict in the testimony as to whether or not such a contract was entered into and what its terms were; and, the actions of the contracting parties may be entitled to more consideration and weight than their verbal expressions, in determining such issues.
2. When there is an agreement founded on a consideration, it is not invalid for want of mutuality because one party has an option while the other has not; or, in other words, because it is obligatory on one and optional with the other.
Appeal from the District Court of Atoka County; Lavern Fishel, District Judge.
Action by plaintiffs against defendants for specific performance of an option to purchase land owned by defendants. After judgment for plaintiffs, and the overruling of defendants' motion for a new trial, the latter appealed. Affirmed.
Clyde Fillmore, Wichita Falls, Tex., Alan B. McPheron, Durant, Ed Dudley, Madill, for plaintiffs in error.
Phillips & Moore, Durant, for defendants in error.
This appeal involves an action instituted by defendants in error, hereinafter referred to by name or as 'plaintiffs', against plaintiffs in error, hereinafter referred to by name, or as 'defendants', for specific performance of a contract allegedly entered into between the two couples for the purchase, by plaintiffs from defendants, of 1350 acres in Atoka County, Oklahoma, for the sum of $57,000.00.
In July, 1962, plaintiffs resided on, or near, the land, and, for several years, had rented it from the defendant Gage, who resided, and had a trucking business, in or near Wichita Falls, Texas. During those years, plaintiff, Estep, had, on more than one occasion talked to the defendant, Gage, about buying the land for the mutually satisfactory price above mentioned.
On July 27, 1962, Mr. Estep, accompanied by one, Lloyd Daniel, Atoka County Supervisor for FHA, traveled to the Gage home in Texas, and entered into oral negotiations to obtain an option from defendants to enable plaintiffs to purchase the land at the aforementioned price.
The controversy which later arose revolved around the character of this option. While Estep and Daniel were at the Gage home that day, defendant signed one of the FHA printed forms of 'OPTION TO PURCHASE REAL PROPERTY', which Daniel apparently carried in his auto for use in connection with his official duties. The form contained certain blanks to be filled in, when used, with such information as the names and addresses of the buyer and seller, the description of the land involved, and certain information concerning the terms of the contract. A purpose of the option, as set forth in paragraph '2' of the printed form, was to enable the buyer to obtain a U.S. Government loan through the FHA for the purchase of the property involved; and the form contained the provision that the buyer's efforts to obtain such a loan constituted a part of the consideration for the option. In other parts of the printed form, the seller agreed to convey to the buyer, by general warranty deed, provided that the option could be exercised by the buyer, at any time the offer to sell remained in force, by mailing to the seller a written notice of acceptance of the offer; and the form continued as follows:
(Emphasis ours).
Before defendants signed the above described option form at the Texas meeting, there was some discussion between the parties present as to how long the option's term should be, and subsequently, within 2 or 3 days after Estep and Daniel returned to Atoka County from Texas with the form, Daniel typed the figure '3' into each of its two blanks above shown. Among other things, he also typed into the space provided for the legal description of the land involved, the words: 'No minerals reserved', immediately following the typed land description, and below that, he also typed the following paragraph:
'The seller agrees that, irrespective of any other provision in this option, the buyer or his assignees may, if the option is accepted, without any liability therefore, refuse to accept conveyance of the property described herein if the aforesaid loan cannot be made or insured because of defects in the title to other land now owned by, or being purchased by, the buyer.'
When the above described option form had been signed by plaintiffs, a copy of it was mailed to Gage's office in Texas. Thereafter, when plaintiffs' application for the above mentioned purchase meney loan had been approved, Estep, using another FHA form, dated December 31, 1962, with 'Subject: Acceptance of Option' printed near its top, and sent by registered mail, notified Gage of Plaintiffs' acceptance of '* * * the offer contained in said option on the terms therein set forth.' After its receipt at Gage's office, it was returned to Estep with the following note typed at the bottom of it, above Gage's handwritten name:
'Dear Mr. Estep:
'If you will check the option you will notice that it has been expired for a month, and as I have already notified you after the option lasped that I did not want to sell now. * * *.'
Thereafter, Gage's auditor, Mr. John P. Hayes, on his behalf, addressed a letter dated January 2, 1963, to Mr. Estep, which said letter, omitting less material parts, contained the following paragraph:
'* * *
'Since nothing happened upon the expiration of a 90 day contract between you and Mr. Gage, Mr. Gage has decided to take this farm off the market. The farm is being currently transferred to Trusts established for the benefit of Mr. Gage's two (2) sons.
* * *.'
Thereafter, Estep sent Gage, by registered mail, another FHA acceptance-of-option form, dated January 7, 1963, over his signature. Apparently, this further effort on the part of plaintiffs to accept their claimed option from defendants was ignored. Thereafter, in March, 1963, plaintiffs filed their petition in the present action and attached a copy of the completed option form to it as 'Exhibit 'a ". Said pleading alleged some of the foregoing facts, and, in addition, that plaintiffs had demanded a conveyance of the subject land from defendants, but that the latter had refused to execute and deliver one to them. Plaintiffs also alleged therein that they were ready and willing to pay the purchase money and accept the conveyance defendants had agreed to furnish them. In said petition, plaintiffs tendered said sum to the court for defendants' use and benefit.
In their answer and cross petition, defendants alleged that on July 27, 1962, they had given plaintiffs an oral option to purchase the subject land, for 90 days only, but that said option was not exercised. They admitted they had signed the original of the instrument evidenced by Exhibit 'a' attached to plaintiffs' petition, but alleged that it was then 'in blank', and that, when it was later completed, or 'filled in', the...
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