Harman v. Franks
| Decision Date | 20 October 1936 |
| Docket Number | Case Number: 25558 |
| Citation | 1936 OK 636,178 Okla. 560,63 P.2d 54 |
| Parties | HARMAN et al. v. FRANKS |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR - Conclusiveness of Findings of Fact in Jury-Waived Case.
If, upon the trial of an issue of fact, a jury is waived and the cause submitted to the court, a finding of fact made by the trial court upon conflicting testimony will not be reversed upon appeal if the testimony reasonably tends to support the judgment of the court.
2. SAME - Review - Sufficiency of Evidence in Equity Case.
The Supreme Court will weigh the evidence in a case of purely equitable cognizance, but will not reverse the same unless it be clearly against the weight of the evidence.
3. VENDOR AND PURCHASER - Right of Vendee to Recover Back Payments Where Contract for Sale of Land Abandoned by Parties.
Where a contract for the sale of land has been mutually abandoned or rescinded by the parties, the vendee may recover back payments made, though the contract provided that on default in a payment the vendee shall forfeit his rights and payments already made.
4. SAME - Right of Vendor to Offset Damages Sustained by Him by Reason of Breach of Contract by Vendee.
Where abandonment of a contract of sale by vendor and purchaser is occasioned by failure and inability of the vendee to carry out the contract, and vendee sues to recover the partial payments theretofore made, the vendor may offset the damages sustained by him by reason of the breach of the contract.
5. CONTRACTS - Oral Negotiations or Stipulations Superseded by Written Contract - Statute.
The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument (section 9456, O. S. 1931).
Appeal from District Court, Kingfisher County; O.C. Wybrant, Judge.
Action by Jos. Franks against D.B. Harman for accounting and injunction, and defendant cross-petitions making Cora E. Harman a party defendant, who joins with him in the cross-petition for rescission of contracts and recovery of moneys had and received. Judgment for the plaintiff, as against the defendants on their cross-petition, and defendants appeal. Affirmed.
Mark B. Ingle, for plaintiffs in error.
Dyer & Smith and M.F. Priebe, for defendant in error.
¶1 Joseph Franks sued D.B. Harman and Cora E. Harman on account of a joint adventure under the style of a "Sheep Raising Agreement," which was in effect a lease covering 320 acres of land owned by Joseph Franks. The contract provided for the raising of lambs on a fifty-fifty basis and the raising of grains on a fifty-fifty basis. The contract is only important for the purposes of this opinion in the particular that it recognized Joseph Franks as the owner of the land; and also in the particular that it bears upon the rights of the parties as evidence of their intention with respect to other matters involved, which will be hereinafter set out. The court's decision with respect to an accounting between the joint adventurers under this contract seems to be satisfactory to the parties concerned in this appeal. However, the Harmans, plaintiffs in error, injected into the case a controversy respecting the land involved which, as shown by the answer and cross-petition of the Harmans, is substantially as follows:
"That the sheep-raising agreement attached to plaintiff's petition herein * * * and the matters and things therein involved are all a part and parcel of and resulting and growing out of the contract for deed between these parties hereinafter referred to. * * *"
¶2 It is said that Cora E. Harman was a party to the original contract for deed, and that by reason of the contract for deed D.B. Harman and Cora E. Harman have an equitable interest in and are entitled to an equitable lien on the real estate involved. The contract for deed was executed April 14, 1928, and a warranty deed was simultaneously executed by Joseph Franks. Both of these documents were deposited in escrow in* the First National Bank of Hennessey, Okla., and under the contract for deed the Harmans took possession of the property on or about August 1, 1928, paying in cash $6,800 on the principal and $6,996.82 as interest. The contract fixed the price at $.39,000 and provided for the payment of $200 per month with interest at 6 per cent. per annum, with the delivery of the deed upon the payment of half of the purchase price. The Harmans were to pay the taxes beginning with the taxes for 1928, and were to receive the oil and gas rentals maturing after 1928; should keep the improvements in good repair and insured.
¶3 The contract provided that:
"In case of the failure by second parties to perform any of the conditions and agreements hereinafter set forth, then, and in that event, all rights of second party under this contract shall terminate, and the escrowed deed shall be returned to first party; and second party shall immediately surrender possession of such lands to first party; and immediately upon such default the relationship between the parties shall be that of landlord and tenant, first party being the landlord, and second party tenant, holding over after expiration of tenancy rights. * * *"
¶4 It further provided:
"In case of such default all payments made shall be retained by first party as rentals for the use and occupancy of such lands, and as further liquidated damages for breach of contract."
¶5 It is pleaded that Franks fraudulently secured the surrender of the escrowed documents to him by the representation that he desired them only for the purpose of placing a mortgage for $4,000 on the premises (which was done), and that he would after the mortgage was executed and the money received execute a new contract for deed at some subsequent date, reducing the price and rate of interest. Discussions relating to this alleged new contract are pleaded at great length in the cross-petition. It is accordingly charged that "said contract * * * was canceled and rescinded by fraud of plaintiff as aforesaid, and this defendant should recover all money expended and paid by him thereunder," and in furtherance thereof defendant contends that the total of payments of principal and interest, improvements placed on the land, and taxes, amount to $15,640.57, and prays for the recovery of that sum with 6 per cent. interest less $466 in oil rentals received and the rental value of the land during the period of its occupancy. The prayer of the cross-petition is that the contract for deed "be adjudged rescinded through and by virtue of the fraud, deceit, duress, menace, and undue influence of said plaintiff, and that this defendant recover of and from said plaintiff" the sum of $15,640.67, with interest, and that the land be impressed with an equitable lien which the court should foreclose to satisfy the defendants' claim.
¶6 After Cora E. Harman was made defendant she adopted the answer of D.B. Harman and the cross-petition of D.B. Harman, and claims a half interest in any judgment obtained. Amendments were filed to the answers and cross-claims, among which is the charge that Joseph Franks "by his actions and conduct, has abandoned and repudiated said contract, and all contracts, for deed and performance thereof, and intends to no longer be bound thereby, and has made performance of said contract, or contracts, for deed impossible on his part, and impossible on the part of these defendants, and therefore, in the alternative, these defendants are entitled to rescind said contract, and all contracts, for deed, and each of said defendants do hereby declare a rescission thereof, as a matter of right, in furtherance of the tender and offer to perform any act of equity which may be commanded by this court upon full hearing and trial."
¶7 It is also charged in the alternative, and the defendants "pray judgment of the court to the end and effect that said defendants have, as a matter of right, rescinded said contract and all contracts for deed on the real estate herein described."
¶8 Franks by his reply admitted the execution of the contract for deed pleaded; that he had performed all conditions to be performed by him, and that Harman and wife defaulted in all payments of principal after July 1, 1930; defaulted in the sum of $1,822.50 interest on June 1, 1932; failed to pay ad valorem taxes for 1930 and 1931; failed to provide insurance as provided by the contract from and after May, 1931, and that after said defaults the parties agreed to terminate the said contract, and that all parties should be released from further compliance therewith; that the payments should be considered liquidated damages, and that Harman and his wife should be released from any further liability. Under that agreement authorization was issued by Harman and his wife to the bank to deliver contract for deed and the escrowed contract, and "thereupon said Harman and wife desiring to rent and lease lands from the plaintiff entered into a certain written lease," which is the so-called "Sheep Raising Agreement" pleaded by the defendants. Franks, in his so-called "Third Defense," says that the provisions of the agreement under which the contract was terminated were fair, just and equitable, but that in the event it should be held that the plaintiff was in fault in the termination of the contract, or that defendants are entitled to recover any money paid by them under the contract, then he is entitled to the difference in value between the land as Harman agreed to pay for it and its actual value at the time of the termination of the contract; that he was also entitled to $8,000 as the fair rental value of the premises during the time the defendant occupied the land and certain taxes and insurance premiums and oil rentals, which is set out as a total of $23,597.
¶9 The trial court found that by the terms of the contract for deed, entered into on...
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...mean "the difference between the actual contract price and the actual value of the land at the time of the breach." Harman v. Franks, 178 Okl. 560, 565, 63 P.2d 54, 59 (1936). ¶ 12 We note the measure of damages set out in § 28 is limiting. It is the remainder of an arithmetical subtraction......
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...the benefits or disabilities had in accordance with the terms of the contract. The plaintiff relies upon the case of Harman v. Franks, 178 Okl. 560, 63 P.2d 54, 58, where the purchasers were woefully in default. The facts in that case are entirely different from the facts in the case before......