Kuhn v. Poole

• Decision Date: 16 November 1910
• Docket Number: Case Number: 566
• Citation: 27 Okla. 534,112 P. 962,1910 OK 340
• Parties: KUHN v. POOLE.
• Court: Oklahoma Supreme Court

1910 OK 340

112 P. 962

27 Okla. 534

KUHN v. POOLE.

Case Number: 566

Supreme Court of Oklahoma

Decided: November 16, 1910

Syllabus

¶0 1. STATUTE OF FRAUDS--Agreement for Erection of Party Wall. An executory parol agreement for the erection of a party wall falls within that portion of section 3371 of Mansf. Dig. Statutes of Arkansas, in force in the Indian Territory prior to the admission of the state, which requires that any contract for the sale of lands or any interest in or concerning them shall be in writing, and is void.

2. SAME--Executed Contract--Acceptance of Benefits. But where an oral agreement is made between two owners, P and K, of adjoining lots that P shall erect a party wall and staircase on the line between their lots and pay therefor, and that K shall, upon using the wall pay one-half of the cost thereof. if the wall is built before any revocation and K thereafter accepts the benefit of the contract and uses the wall, the contract is taken out of the statute, and an action thereon may be maintained.

3. WITNESSES--Impeachment--Previous Statements. Before a witness can be impeached by proof of contradictory statements made by him outside of the court room, his attention must first be called to the time. place, and person involved in the supposed contradictory conversation in a manner sufficiently definite that there is a reasonable certainty that the recollection of the witness will be refreshed and his attention directed to the alleged conversation.

4. SAME--Statements in Writing--Parol Evidence. If the contradictory statement consists of a written statement, made by the witness, the writing is the best evidence of the contents of the statement; and, in the absence of a showing that the written instrument is lost or destroyed or that the person seeking to prove the contents of the same is unable to produce it in court, parol evidence as to the contents thereof is not admissible.

Error from District Court, Craig County; T. L. Brown, Judge.

Action by C. W. Poole against W. J. Kuhn. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

W. H. Kornegay, for plaintiff in error.

Seymour Riddle, for defendant in error.

HAYES, J.

¶1 This action was brought by defendant in error, plaintiff below, in the United States Court for the Northern District of the Indian Territory before the admission of the state to recover one-half the cost of the construction of a party wall. He alleges in his complaint filed in the court below that he is the owner of two certain lots in the town of Chelsea in this state; that defendant is the owner of the lot adjoining his two said lots on the east; that during the year 1899 plaintiff entered into a contract with a firm of contractors to erect on his lots a two-story rock store building; that while said contractors were constructing said building, a parol contract was made between plaintiff and defendant, whereby it was agreed that defendant should pay to the plaintiff the cost of that portion of the wall next to plaintiff in error's lot which had already been erected and the cost of tearing it down; and that plaintiff should rebuild said wall on the line between the lots of plaintiff and defendant; half of the wall to rest upon the lot of each party; and also a party staircase and side-walk; that plaintiff should pay for same; and that defendant would pay to plaintiff half the cost thereof. Plaintiff alleges that he has fully executed the contract; that defendant has paid a portion of the cost thereof, but refuses to pay the remainder, for which he asks judgment. Defendant, by his answer, denies that he agreed to pay plaintiff anything whatever on account of the work done upon the building before the agreement was made for the construction of the party wall; and alleges the facts to be that one Hutton constructed the party wall up to the second story; and that for said work defendant was to pay one-half to the said Hutton, and that he had paid to Hutton one-half of the cost of the erection of said wall to the second story; that after the first story of the said wall was constructed, Hutton left the country and the completion of the wall was taken charge of by plaintiff; that defendant agreed to pay plaintiff half the cost of the erection of the wall above the first story; and that he has paid same.

¶2 The evidence of plaintiff supports all the allegations of his petition, while the evidence of defendant tends to support the allegations of his answer; but the general verdict of the jury found all the issues in favor of plaintiff; and, under the state of the evidence, the verdict is conclusive upon us upon all controverted questions of fact. Defendant demurred to plaintiff's complaint and also to his evidence, upon the ground that since the contract sued upon is not in writing and attempts to convey an interest in real estate, it is violative of the statute of frauds and void. Section 3371 (Mansf. Dig. Statutes of Arkansas). in force in the Indian Territory at the time the alleged contract was made, provides: "No action shall be brought: * * * Fourth. To charge any person upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them" unless the agreement, promise or contract upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized.

¶3 Plaintiff in error cites and relies upon Walker v. Shackelford, 49 Ark. 503, 5 S.W. 887; Rudisill v. Cross, 54 Ark. 519, 16 S.W. 575; and Plunkett v. Meredith, 72 Ark. 3, 77 S.W. 600, to support his contention. These cases support the rule that oral agreements to erect a party road are void, but they do not hold that where one of the parties has executed the contract before a revocation thereof and the other has accepted the benefits therefrom, the party who has performed the contract cannot recover thereon. In 22 Am. & Eng. Encyc. of Law, p. 240, it is said:

"An executory parol agreement for the erection of a party wall is void as being within the statute of frauds requiring all agreements relating to any interest in land to be in writing. But when under such a contract the wall has been erected, the contract is no longer within the statute as between the parties who have already received its benefits, and one of them having promised to contribute to the cost of its erection, and having used the wall, is bound to contribute."

¶4 The cases from Arkansas cited do not go further than the general rule just stated. In Walker v. Shackelford, supra, there was a parol agreement whereby the defendant was to use a brick wall on plaintiff's lot in erecting a building upon his own lot, and was to pay therefor a fixed sum to be paid on the completion of defendant's building. Defendant used the wall in the construction of his building and continued to use it until it was destroyed by fire, but refused to pay therefor. The court in the opinion discusses the case both upon the theory of an action for use and occupation and of an action for damages for breach of contract to convey an interest in land; and upon the latter theory, it is said:

"On the other hand, regarding Walker as the purchaser of an interest in land, it is claimed that, the contract being void, no damages can be given for its breach. But here comes in the doctrine of performance--not partial performance, which probably has not the effect to take a case out of the operation of the statute--but complete performance. What was it that Walker bargained for? The use of the wall for the support of his timbers, so long as the wall should stand. This right he has enjoyed as fully as if Mrs. Shackelford had executed to him a formal conveyance. Having accepted the benefit of an act done at his request, he cannot refuse to make compensation on the ground that the contract was invalidated by the statute."

¶5 In the Rudisill v. Cross case, a party fence had been constructed under an agreement that each party should pay half the cost thereof. After the construction of the fence, a parol agreement was made, whereby it was agreed that defend...