Gall v. Brashier
Decision Date | 30 August 1948 |
Docket Number | No. 3634.,3634. |
Citation | 169 F.2d 704 |
Parties | GALL v. BRASHIER et al. |
Court | U.S. Court of Appeals — Tenth Circuit |
Albert D. Lynn and J. B. Dudley, both of Oklahoma City, Okl. (Paul Dudley and Dudley, Duvall & Dudley, all of Oklahoma City, Okl., on the brief), for appellant.
Geo. N. Otey, of Ardmore, Okl. (Otey, Johnson & Evans, of Ardmore, Okl., on the brief), for appellees.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
Gall brought this action against the Brashiers in the district court of Garvin County, Oklahoma, for specific performance of an agreement to give an oil and gas lease on certain lands in Garvin County, owned by the Brashiers and others. The case was duly removed to the United States District Court. The trial court sustained a motion to dismiss the second amended complaint1 and dismissed the action.
The complaint alleged that on January 6, 1947, Gall entered into negotiations with Ernest Brashier to acquire an oil and gas lease upon a tract of land in Garvin County, particularly described in the complaint; that thereafter the Brashiers, acting through their agent and attorney, Samuel Hurwitz, made a firm offer to lease such lands to Gall for a cash bonus of $12,000, $1,000 to be deposited in the First National Bank of Orange, California, as a part payment on the lease, and the balance to be paid on or before January 24, 1947, after title examination showing a merchantable title in the Brashiers; that on January 18, 1947, Gall sent a telegram to the First National Bank of Orange, California, reading as follows:
;
that on the same day, Gall sent a telegram to Hurwitz reading as follows:
;
that Hurwitz represented the Brashiers, who were part owners of the land, and J. A. Barnett and William L. Barnett, who owned the remaining interest; that after sending the last-mentioned telegram, Gall talked to Hurwitz by long distance telephone and advised the latter that he had forwarded the $1000 to the bank; that Hurwitz told him the terms were satisfactory to the Brashiers and Barnetts; that the Barnetts lived in the northern part of California and were on their way to Orange, California, and that the Barnetts and Brashiers would sign the lease late that day, or the following day, and that it would be mailed as agreed upon; that the owners would not furnish an abstract, but that Gall would have to procure an abstract for the examination of the title; that immediately thereafter, Gall ordered an abstract; that on January 20, 1947, at Orange, California, the Barnetts and their wives and each of the Brashiers executed the lease on a form furnished by Gall in accordance with the terms of the alleged agreement, and delivered the same to Hurwitz with instructions to complete the transaction by forwarding the lease, with a draft for $11,000, to the Tradesmens National Bank of Oklahoma City, Oklahoma; that on January 21, 1947, the Brashiers revoked such instructions, withdrew the oil and gas lease, and entered into negotiations to execute a lease to a party unknown to Gall; that on January 21, 1947, Hurwitz sent a telegram to Gall reading as follows:
;
that Gall commenced this action on January 24, 1947; that on January 25, 1947, there was presented to the County Clerk of Garvin County, for filing and recording, an oil and gas lease which had been executed by the Barnetts and Brashiers on the form furnished by Gall; that the name of Gall had been erased in such instrument and the name of Robert S. May, as lessee, inserted; that the term of the lease had been changed from 5 years to 10 years, and the date changed to January 22, 1947.
Gall prayed for specific performance, or, in the alternative, for damages in the sum of $15,000.
Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that "in pleading to a preceding pleading, a party shall set forth affirmatively * * * statute of frauds. * * *" However, since the contention that the statute of frauds must be affirmatively pleaded was neither raised here nor below, and since the essential facts seem to appear affirmatively on the face of the complaint, we shall undertake to determine whether the lease and the telegrams met the requirements of 15 O. S.A. § 136, which reads 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:
* * * * * *
The placing of the lease in the hands of Hurwitz for delivery to the Tradesmens National Bank of Oklahoma City did not constitute a delivery of the lease.
The authorities are in disagreement as to whether a delivery of the memorandum is necessary to meet the requirements of the statute of frauds.2
So far as we are able to find, the Supreme Court of Oklahoma has not passed on a case where the deed or lease, relied on as a memorandum, remained undelivered in the hands of the vendor or lessor, but the Supreme Court of Oklahoma has consistently held in cases where the deed or lease, relied on as a memorandum, had been deposited in escrow, delivery to the vendee or lessee was not necessary to meet the requirements of the statute of frauds and has cited, with approval, decisions of the Supreme Court of Kansas and the Supreme Court of Alabama, which adhere to what, perhaps, is a minority view that delivery is not essential under the statute.
In Schuerer v. Crockett, 108 Okl. 218, 236 P. 30, 32, the court said:
Again in Hopkins v. Walker, 144 Okl. 254, 291 P. 70, 72, the court said:
See, also, Akers v. Brooks, 103 Okl. 98, 229 P. 544.
In the Oklahoma cases the instrument relied on as a memorandum had been deposited in escrow. But the holding of the Kansas and Alabama cases, cited with approval, is not that a delivery in escrow is a sufficient delivery under the statute of frauds, but that a delivery is not an essential prerequisite.3
The underlying philosophy of the Kansas and Alabama cases and cases in other jurisdictions which follow the minority view is that, since the...
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