Kyger v. Caudill

• Decision Date: 07 April 1925
• Docket Number: Case Number: 12126
• Citation: 1925 OK 284,241 P. 814,115 Okla. 102
• Court: Oklahoma Supreme Court
• Parties: KYGER v. CAUDILL.

1925 OK 284

241 P. 814

115 Okla. 102

KYGER v. CAUDILL.

Case Number: 12126

Supreme Court of Oklahoma

Decided: April 7, 1925

Syllabus

¶0 1. Homestead--Sale Contract--Partial Payment as Liquidated Damages--Invalidity of Contract--Recovery of Vendee's Payment Where Vendor Ready to Perform.

Where the vendee contracts in writing with the vendor to purchase his homestead property and makes a partial payment at the time the contract is executed and the contract provides a definite time for payment of the balance due and for forfeiture of amount paid as liquidated damages if default is made in payment of balance due, the contract is void, under section 5240, Comp. St. 1921, but the vendee cannot default in payment provided by the contract and recover the amount paid, where the vendor and his wife are ready and willing to live up to the contract and offer to convey the property upon full payment being made.

2. Trusts--Recovery of Payments Made by Vendee Under Special Agreement.

Where the vendee contracts with the vendor as above stated and makes a partial payment, and, before the date for full payment, notifies the vendor that he cannot pay for the property and offers to forfeit the amount paid and asks to be released from the contract, and the vendor proposes to assist the vendee in raising the money to pay for the property and promises the vendee that he shall not lose anything in the transaction and the vendee, relying upon this proposal to assist and promise that he would not lose anything, makes other payments, less than the full amount, and, after exhausting all his resources and the assistance of the vendor, is unable to pay the whole amount due, the amount paid, under this agreement, may be recovered by the vendee as money held in trust for him by the vendor.

3. Vendor and Purchaser--Action to Recover Payments Under Contract for Forfeiture--Recovery of Damages by Vendor.

Where a contract for purchase of real estate provides for forfeiture of partial payments in case of default of full payments, and the vendee makes default in full payment and sues to recover the partial payments and the vendor pleads the provision of forfeiture in the contract and that he has been damaged and offers proof in the trial as to the same, the court may award him such damages as the evidence shows he is entitled to, not to exceed the amount provided for in the contract.

Commissioners' Opinion, Division No. 3.

Error from District Court, Osage County; Preston A. Shinn, Judge.

Action by Josephine M. Caudill against T. P. Kyger to recover money held in trust. Judgment for plaintiff, and defendant appeals. Affirmed.

M. R. Museller and Grinstead & Scott, for plaintiff in error.

Wilson, Murphy & Duncan, for defendant in error.

THREADGILL, C.

¶1 This action was brought by Josephine M. Caudill, as plaintiff, against T. P. Kyger, as defendant, in the trial court to recover $ 5,050 claimed as due her by reason of a void contract and circumstances she could not control and her failure to pay the sum of $ 25, 000 for certain lots and improvements in the city of Pawhuska, being the homestead property of the defendant, $ 250 of the $ 5,050 being paid to the defendant on February 4, 1918, pursuant to a written contract of sale of that date between the parties, which was not signed by the wife of defendant, and which provided that plaintiff should pay the balance of the $ 24,750 on February 14, 1918, and failure to make the payment should forfeit the initial payment of $ 250; and the $ 4,800 having been paid pursuant to a verbal agreement, made after the written agreement, and upon the offer of plaintiff to forfeit the $ 250 and give up the sale, that defendant was to assist her in procuring the money to pay for the property and telling her that she should not lose a nickel in the transaction and that he would rather she would have the property than any one else. Under the verbal agreement she claims that she made two payments, one of $ 1,800 by giving a lease on her farm for five years and one of $ 3,000, money she borrowed from a friend, and failing to raise the other money and seeing that it was impossible for her to make the payment, she gave up the sale and again offered to forfeit the initial payment of $ 250 and demanded the return of $ 4,800, which the defendant refused. Defendant made the defense that there was but one contract and that was the written contract and the verbal agreement only affected the written contract in extending the time, and the provisions for forfeiting all payments made as liquidated damages apply not only to the $ 250, but to the $ 4,800. A jury was waived and the cause tried to the court and resulted in judgment in favor of plaintiff for $ 4,800, and defendant has appealed asking for a reversal upon eight assignments of error, the principal one of which is that the evidence is not sufficient to sustain the judgment and all of which he discusses under five general propositions.

1. The first proposition is stated as follows:

"Where a vendee contracts to purchase certain real estate and after paying part of the purchase price, makes default, he cannot recover the money paid even though the property in question be the homestead and the contract of sale was not signed by wife of vendor."

¶2 In support of this proposition defendant cites the following cases: Schechinger v. Gault et al., 35 Okla. 416, 130 P. 305, 1914D, Ann. Cas. 468; Baker v. Haswell & Taylor, 36 Okla. 429, 128 P. 1086; Martin v. Spaulding et ux., 40 Okla. 191, 137 P. 882; Helm v. Rone, 43 Okla. 137, 141 P. 678; Hurley v. Anicker, 51 Okla. 97, 151 P. 593, L. R. A. 1918 B, 544; Snyder v. Johnson, 44 Okla. 388, 144 P. 1035; Price v. McDowell, 52 Okla. 608, 153 P. 649; Weller v. Dusky, 51 Okla. 77, 151 P. 606; Beatty v. Wintrode Land Co. et al., 53 Okla. 118, 155 P. 574; Claremore Town-Site Co. v. Burke, 56 Okla. 169, 155 P. 897; Kershaw v. Hurtt, 66 Okla. 117, 168 P. 202.

¶3 Defendant pleaded and proved that he and his wife prepared a warranty deed and were ready and willing to deliver same to plaintiff at any time she paid the price for the property, and that they had been ready and willing to do this at all times since February 14, 1918.

¶4 We think the cases cited fully sustain defendant's proposition, and if there were no other questions involved in the case than the written contract and money paid under its terms we would be forced to reverse the judgment.

2. But the record discloses that plaintiff stated in her petition that she found after making the written contract and after she had paid the $ 250 that she could not raise the money to pay the $ 25,000, and, before February 14, she so informed the defendant, and then they made a verbal agreement, in which it was not required that she pay the whole amount cash, but by which she could pay $ 1,800 and another payment of $ 3,000, and then it was agreed that they would determine what could be done about the

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