Griffin v. Bredouw
| Decision Date | 09 November 1966 |
| Docket Number | No. 41457,41457 |
| Citation | 1966 OK 226,420 P.2d 546 |
| Court | Oklahoma Supreme Court |
| Parties | Theodore GRIFFIN, Plaintiff in Error, v. Jack BREDOUW and Arinthia F. Bredouw, Defendants in Error. |
Syllabus by the Court
1. The general rule is that a deed includes all prior negotiations and agreements leading up to its execution and delivery but such rule does not apply to matters not consummated by the delivery of the deed and does not relieve the conveying party from prior commitments made in a construction contract to furnish and pay for materials used in the construction of a dwelling house conveyed in the deed.
2. Generally, attorney's fees are not recoverable unless expressly provided for by contract or authorized by statute, but such rule applies to claims for attorney's fees within the action itself, and not to situations where the wrongful acts of the defendant have involved plaintiff in litigation with others, or have placed him in such relation with others as to make it necessary for him to incur attorney's fees to protect his interests, attorney's fees being recoverable in such cases as one of the elements of damages flowing from the original wrongful act of defendant.
Appeal from the Court of Common Pleas, Tulsa County; Rooney McInerney, Judge.
Action by plaintiffs to recover damages from defendant for defendant's breach of contract. Damages sought were for reimbursement of a judgment against plaintiffs for the installation of fence by fence company and attorney fees incurred in prior litigation. From a plaintiffs' verdict, defendant appeals. Affirmed.
Floyd L. Walker, Tulsa, for plaintiff in error.
Ungerman, Grabel, Ungerman & Leiter, Tulsa, for defendants in error.
Parties will be referred to as they appeared in the trial court. On November 9, 1960, plaintiffs and the defendant entered into a written contract whereby the defendant agreed to build a house for the plaintiffs on a lot to be acquired by him in the City of Tulsa. Plaintiffs agreed to pay the defendant the sum of $22,000.00 purchase price for the completed house and lot. Plans and specifications were agreed upon by the parties and were made a part of the building contract. Defendant agreed to 'provide and furnish such materials of such kinds and qualities and descriptions as shall be fit, proper and sufficient for completing and furnishing such improvements.'
The contract provided for the erection of a 'sapling fence' around a portion of the premises. The 'sapling fence' was furnished and erected by the Allied Chain Link Fence Company hereinafter referred to as Allied. Defendant declined to pay Allied's bill and this litigation involves solely the liability of the defendant for damages sustained by the plaintiffs because of his failure to pay the bill.
As the building progressed numerous conferences occurred between the parties. The contract provided that certain deviations might be made in the original plans 'said changes to be specified in writing * * * the value of such alterations shall be added to or deducted from the amount herein agreed to be paid to said first party.' Defendant agreed that the plaintiffs might select the materials to be used in the construction of the house subject to approval by the defendant.
During the time the house was being erected it became apparent that the cost of building the house would exceed the purchase price of $22,000.00 provided for in the contract.
After the building had been completed, one of the plaintiffs (Jack Bredouw) and the defendant spent approximately one entire day checking the building costs. Defendant finally submitted the plaintiffs an over-all bill of $26,115.45. The plaintiffs agreed to pay the defendant the sum of $26,000.00 for the house. In the construction contract the plaintiffs agreed to make every effort to secure a loan on the property for $22,000.00. They secured a loan from the Ponca City Building and Loan for the amount of $22,000.00 and such amount was delivered to the defendant. Plaintiff arranged to pay the defendant the $4,000.00 balance of the $26,000.00 by delivering the defendant the sum of $1,000.00 cash and executing a series of notes totaling $3,000.00.
Defendant on September 18, 1961, delivered the plaintiffs a warranty deed to the property. In the deed defendant warranted to the plaintiffs that the premises were 'free, clear and discharged and unencumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and excumbrances of whatever nature and kind.'
Defendant declined to pay the bill of Allied in the amount of $532.29 for furnishing the fence. Allied filed a material lien against the property and filed suit against the defendants to foreclose the lien. Allied secured a judgment against the plaintiff herein for the sum of $532.29, plus attorney's fees in the amount of $850.00 and costs. Plaintiff settled the judgment by paying Allied and its attorney the sum of $1,250.00. Plaintiffs were required to pay their own attorney $350.00 for defending them in the suit filed by Allied.
In this action plaintiffs seek recovery from the defendant Theodore Griffin for the sum of $1,600.00 the amount they were required to expend in connection with the Allied lien foreclosure. The case was tried to the court without a jury. The trial court entered judgment in favor of the plaintiffs for the sum of $1,600.00.
Defendant contends that the acceptance of the warranty deed by the plaintiffs from the defendant pursuant to the sales contract merged and extinguished all covenants, stipulations and responsibilities contained in the sales contract which were inherently material to the delivery of the deed.
The general rule is that a deed includes all prior negotiations and agreements leading up to its execution and delivery. It does not apply to matters not consummated by the delivery of the deed.
The execution and delivery of the deed is only a part performance of the transaction and does not relieve its maker from prior commitments made to the purchaser in a construction or sales contract with reference to furnishing and paying for materials used in the construction of a dwelling on the premises.
In Banks v. City of Ardmore, 188 Okl. 611, 112 P.2d 372, 373, this Court held that where land is conveyed by deed, pursuant to a written contract containing provisions involving the rights of the parties, not...
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