House v. Boylan
| Decision Date | 28 November 1939 |
| Docket Number | 28571. |
| Citation | 96 P.2d 532,186 Okla. 124,1939 OK 515 |
| Parties | HOUSE v. BOYLAN et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Evidence is properly refused where its admissibility is dependent upon the existence of an agency which is nowhere established by competent evidence.
2. Where the plaintiff in an action for specific performance relies upon an alleged contract which. if executed at all was executed by the defendant's agent, the burden of proving agency is upon the plaintiff.
3. If an agreement for the sale of real property is alleged to have been made by an agent of the party sought to be charged, it is invalid and unenforceable unless the authority of the agent to make the agreement is shown to be in writing and subscribed to by the party sought to be charged. Sec. 9455 O.S.1931, 15 Okl.St.Ann. § 136.
Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.
Action for specific performance of an alleged contract to convey realty by William S. House against Henry L. Boylan and Myrtle S. Boylan. Henry L. Boylan died after the action was filed and it was revived in the name of Myrtle S. Boylan, executrix of the last will and testament of Henry L. Boylan, deceased, and in the names of the devisees and assigns of Henry L. Boylan, deceased. From a judgment in favor of the defendants, the plaintiff appeals.
Judgment affirmed.
Robert J. Bell and Wallace Wilkinson, both of McAlester, for plaintiff in error.
Frank D. McSherry, of McAlester, for defendants in error.
This is an action for specific performance of an alleged contract to convey real estate. The trial court held for the defendant and the plaintiff appeals.
The plaintiff had owned and occupied the property for many years but in 1931 he lost title to it by mortgage foreclosure, and the defendant obtained title by sheriff's deed executed pursuant to the mortgage sale. The plaintiff continued in possession, however, as a tenant of the defendant landlord. About the middle of 1933 the plaintiff began certain negotiations with rental agents of the defendant, and with the defendant's wife, and possibly with defendant's attorney, concerning the possibility of plaintiff's obtaining a loan from the Federal Land Bank or from the state Commissioners of the Land Office, with which to repurchase the land. The present lawsuit grew out of those negotiations. The plaintiff has never seen the defendant, and the defendant never saw the plaintiff or the land. The defendant died after this action was filed, and it was revived in the names of his executrix, devisees and assigns, but for purposes of clarity we shall discuss the case as if those events had not occurred.
The only written instrument signed by the defendant was a printed form of the Federal Land Bank called "Purchase Price Statement and Authority for Payment", wherein plaintiff applied for a loan, but the amount of the loan or prospective consideration was not stated. This instrument appears to have served mainly for the purpose of supplying the Federal Land Bank with information. It lacked several of the essentials to an enforceable contract for sale of real estate (Halsell v. Renfrow, 14 Okl. 674, 78 P. 118, 2 Ann.Cas. 286), and plaintiff does not contend that said instrument, alone, entitled him to relief.
He does contend that the purchase price statement, plus certain correspondence between him and the alleged agents of defendant, if said correspondence had been admitted in evidence, would have been sufficient to establish either a written or an oral contract of sale, which, coupled with his placing improvements on the land in reliance thereon, would have entitled him to specific performance. He therefore urges that the refusal of the trial court to receive the correspondence into evidence was error. Said rejection of offered evidence is the only question in the case necessitating any discussion, as we view it, and we are further strengthened in that belief by the statement in plaintiff's brief to the effect that the appeal is predicated almost exclusively thereon.
As stated above, the plaintiff never corresponded or talked with the defendant personally. He did not offer in evidence any communication from the defendant. Every refused offer of evidence was of correspondence with some person alleged to have been the agent of the defendant or acting for him, it being claimed that said correspondence itself constituted a part of the contract.
But until, or at least unless, the agency itself is proved by...
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