Landon v. Morehead
| Decision Date | 20 August 1912 |
| Docket Number | Case Number: 1941 |
| Citation | 34 Okla. 701,1912 OK 545,126 P. 1027 |
| Parties | LANDON v. MOREHEAD. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR--Review--Rulings on Pleadings--Harmless Error. A refusal of the trial court to sustain a motion to strike out parts of a pleading which are surplusage, or which consist of immaterial averments or of evidential facts, is harmless error, unless it appears that the matters which the court refused to strike out materially and prejudicially affected the interest of him who complains of the action of the court.
2. VENDOR AND PURCHASER--Option to Purchase--Assignment. An option for the purchase of lands, made to one named therein, his heirs or assigns, is, by the express terms of the option, assignable.
3. FRAUDS, STATUTE OF--Option--Assignment--Executed Contract. Where an option to purchase lands runs to the optionee or his assigns, and is assigned to third persons for an agreed price, an action to recover the consideration, brought by the assignor, is not affected by the statute of frauds, the contract being an executed one; the consideration alone remaining unpaid.
4.PLEADING--Reply--Departure. Reply examined, and its allegations found not to constitute a departure from the allegations of the amended petition.
5.SAME--Demurrer. Although the allegations of a reply may constitute a departure, yet the objection cannot be taken advantage of by demurrer, or objection to the introduction of evidence on the pleading.
6.DISCOVERY--Inspection of Documents--Possession and Control. In a proceeding under section 5888, Comp. Laws 1909, to obtain of the adverse party an inspection and copy, or permission to take a copy, of paper or document, it must first be established that such paper or document is in existence, and, if this be shown, that it is in the possession of, or under the control of, said party.
7.EVIDENCE--Secondary Evidence--Notice to Produce. An order, made by the court or judge upon an unverified notice or demand for inspection, without proof of the existence of the described document, and possession or control of it by the adverse party, will not authorize the introduction of secondary evidence of the contents thereof; no further effort to procure said document being made, and there being no proof showing its loss or destruction.
8.WITNESSES--Adverse Party--Production of Documents. Any party to a civil action or proceeding may compel any adverse party to such action or proceeding, at the trial, or by deposition, to testify as a witness in the same manner and subject to the same rules as other witnesses, and by the service of subpoena may require such party to bring with him any book, writing, or other thing under his control, which he is bound by law to produce as evidence.
9.EVIDENCE--Secondary Evidence--Contents of Writing--Proof by Parol. Parol evidence of the contents of a written option and a written assignment thereof was improperly admitted, where no sufficient steps were taken to obtain an inspection or production of the writings, as required by section 5888, Comp. Laws 1909, allowing a party to demand of the adverse party an inspection and copy of papers in his possession or under his control, containing relevant evidence, and providing that, on failure to comply with the order to permit such inspection, the court may direct the jury to presume the papers to be as the party by affidavit alleges them to be, and where the party seeking such evidence does not require the adverse party to appear as a witness, and to bring with him the papers in question, as provided by section 5844, Comp. Laws 1909, authorizing a subpoena to be directed to a witness, requiring him to bring with him any paper under his control, which he is bound by law to produce as evidence, and did not show that the instruments themselves were lost or destroyed.
Paul F. Cooper, for plaintiff in error.
Blakeney & Maxey and A. W. Johnson, for defendant in error.
¶1 On the 17th day of February, 1908, defendant in error, hereinafter referred to as plaintiff, commenced his action against defendants, W. J. Howey, J. E. Landon, and J. E. Dunn, in the district court of Pottawatomie county, and caused summons to be issued, directed to the sheriff of Pottawatomie county, commanding him to summons the above-named defendants. Process was served on defendant J. E. Landon February 19, 1908. No service of summons was ever had on defendants Howey and Dunn, and at no time was their appearance entered. The amended petition, among other things, charged that defendants were, on the 1st day of January, 1906, and for more than a year thereafter, partners in business, under the partnership name of the Mexico Land Company; that on or about the 1st day of November, 1905, the plaintiff was the owner of a certain written option, dated about the 1st day of April, 1905, upon a certain tract of land situated in the state of San Luis Potosi, in the republic of Mexico, consisting of 36,860 acres, and that said tract was known as the Warburton and Jackson tract; that plaintiff's option was in writing, and provided that Santiago H. Warburton and J. P. Jackson, owners thereof, would, upon payment of $ 50,000 within twelve months thereafter, convey by good and sufficient general warranty deed the said tract to the plaintiff, his heirs and assigns; that on or about the 27th day of November, 1905, plaintiff entered into an oral agreement with the defendants, by the terms and conditions of which he agreed to assign and transfer to said defendants, and defendants agreed, within a reasonable time, to pay plaintiff for such assignment and transfer $ 25,000, and that, in pursuance of said oral agreement, the plaintiff did assign, in writing, the said option to the said defendants, and that defendants, in consideration thereof, agreed to pay plaintiff the sum aforesaid; that defendants took possession of said lands, and the said Santiago H. Warburton and J. P. Jackson recognized and consented to such assignment, and that said defendants thereupon assigned and conveyed said tract of land to the Mexico-United States Land & Immigration Company, and received therefrom a consideration of about $ 100,000; that plaintiff, after having waited a reasonable time, had made demand for payment of said defendants, which they failed, refused, and neglected to make. Plaintiff, however, alleged that he could not obtain a copy of the option therein referred to, because of the fact that the same was delivered to the defendants, and that he did not retain a copy thereof, and that the option and assignment thereof was then, and had been since the date of the execution of the latter, in the possession of said defendants. Demurrer to amended petition being overruled, defendant Landon, on the 11th day of November, 1908, filed his separate answer, consisting of a general denial and five separate additional paragraphs containing specific denials. Defendant denied specially that he, Howey, and Dunn were ever partners, and further denied that plaintiff was, at the time charged, the owner of an option or offer to purchase or sell the lands described in plaintiff's amended petition, and denied that there was a tract of land in the republic of Mexico known as the Warburton and Jackson tract, or that said Santiago H. Warburton and J. P. Jackson owned any such tract at or near the place described in plaintiff's amended petition, or at any other time, and denied that plaintiff ever contracted with said Warburton and Jackson for an option or offer to purchase or sell said land, or that plaintiff ever had such an option or interest in said land, or option or offer, or a contract, either for the purchase or sale of said land, such as he could assign, sell, transfer, or convey to defendant or any other person. Defendant denied that, acting either for himself or as a partner of said Howey and Dunn, he ever entered into a contract with plaintiff for the purchase of an offer or option to purchase or sell said lands for the said sum of $ 25,000, or any other sum or consideration, and denied that plaintiff ever assigned, transferred, and delivered an option or offer to purchase or sell said lands, either to defendant personally, or to defendant and W. J. Howey and J. E. Dunn as partners. Defendant further denied that either he or the alleged partnership ever purchased said lands from the said Warburton and Jackson, or either of them, or from any other persons, or that he or said partnership ever sold said tract of land to the said Mexico-United States Land & Immigration Company, or any other person, for any consideration or at all, but that said answering defendant, together with other associates, did organize said last-mentioned company under the laws of the territory of Oklahoma, and which said corporation was protocolized and licensed to do business under the laws of the republic of Mexico, at the city of Valles, in the state of San Luis Potosi, and that said corporation afterwards purchased direct from the owners thereof said land, the name of the grantors, number of hectares, square meters, and ares being set forth in full, and the aggregate of which said purchase constituted about 27,737 acres. It was further denied in the answer that either said defendant or the said W. J. Howey, J. E. Dunn, and said defendant, as partners, ever sold to the said Mexico-United States Land & Immigration Company any land described in plaintiff's petition for the said sum of $ 100,000, or any other sum or consideration. To this answer plaintiff replied, and defendant filed a motion to strike from the reply certain portions thereof, which motion was, on the 25th day of September, 1909, overruled. Thereupon defendant demurred to said reply, which demurrer was thereafter overruled. On the 17th day of June, 1909, on motion of plaintiff, the case was transferred from the district court to the superior court of Pottawatomie county. Twenty-nine assignments of error are urged...
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