Love v. Kirkbride Drilling & Oil Co.
| Decision Date | 07 January 1913 |
| Docket Number | Case Number: 1782 |
| Citation | 1913 OK 22,37 Okla. 804,129 P. 858 |
| Parties | LOVE v. KIRKBRIDE DRILLING & OIL CO. |
| Court | Oklahoma Supreme Court |
¶0 1. CONTRACTS--Contract for Benefit of Another--Enforcement by Beneficiary. A contract, made expressly for the benefit of a third person, may be enforced by such person at any time before the parties thereto rescind it. Comp. Laws 1909, sec. 1044.
2. SAME--Transfer of Corporation--Benefit of Third Party. K., the president and general manager of the Kirkbride Drilling & Oil Company, entered into a verbal agreement with L., a stockholder in said company, who was also the manager and assistant treasurer of the Sachem Oil Company, whereby the beneficial interest of said first-named company and of K., theretofore claiming to be the owner of said interest in his own right, was transferred to the Sachem Oil Company, in consideration of a sum certain, to be paid by said last-named company into the treasury of the first-named company, and which amount was so paid, but subsequently appropriated by L. and J., owners of one-half of the stock of the Kirkbride Drilling & Oil Company, claiming ownership thereof. Held, that the agreement so made and entered into constituted a valid contract, supported by a good consideration, and that an action would lie to recover the purchase price by the first-named company.
3. FRAUDS, STATUTE OF--Executed Contract. The defense of the statute of frauds cannot be interposed against an executed contract.
4. SAME--Oil Leases--Transfer--Executed Contract. Where a parol contract for the sale of certain oil leases, unenforceable because within the statute of frauds, is executed, and the contract of sale fully performed by proper transfer of said leases, and nothing remains to be done except pay over the purchase price, the statute may not be invoked as a means of defeating a recovery. In such cases the rights of the parties are no longer affected by the statute.
5. APPEAL AND ERROR--Review--Reversal--Variance. Though there be a variance between the allegations of a petition and the facts proved on the trial, yet, if it be a case where an amendment of the petition ought to be allowed to conform it to the facts proved, the judgment will not be reversed on account of such variance.
6. SAME--Judgment--Evidence. A judgment will not be reversed by this court on account of the insufficiency of the evidence, where the evidence reasonably tends to support the same.
Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.
Action by the Kirkbride Drilling & Oil Company against B. L. Love. Judgment for plaintiff, and defendant brings error. Affirmed.
Hutchings & German, for plaintiff in error.
Samuel V. O'Hare and B. B. Wheeler, for defendant in error.
¶4 This case presents error from the superior court of Muskogee county, where at the trial plaintiff recovered judgment against defendant in the sum of $ 2,050. It is urged that the alleged contract entered into between T. E. Kirkbride and defendant Love, being for the benefit of the plaintiff corporation, cannot be enforced because the Kirkbride Drilling & Oil Company, defendant in error, was not a party to the contract, and that T. E. Kirkbride was under no obligation to it, and that the alleged contract, not being in writing, under the statute of frauds was null and void, and for these reasons defendant's demurrer to plaintiff's petition should have been sustained. Counsel for plaintiff in error cite in support of their contention Vrooman v. Turner, 69 N.Y. 280, 25 Am. Rep. 195, Lorillard v. Clyde et al., 122 N.Y. 498, 25 N.E. 917, 10 L.R.A. 113, Baxter v. Camp, 71 Conn. 245, 41 A. 803, 42 L.R.A. 514, 71 Am. St. Rep. 169, German State Bank v. Northwestern Water & Light Co., 104 Iowa 717, 74 N.W. 685, 9 Cyc. 380, and cases cited therein, as being decisive of the first above mentioned objection.
¶5 When a contract, made for the benefit of a third person, may be enforced by him, is a question that has ofttimes been before the courts, and many of the authorities are collected in the notes to Baxter v. Camp, supra, and in Jefferson et al. v. Asch, 25 L.R.A. 257, and Tweeddale v. Tweeddale, 61 L.R.A. 509, as well as in Anson on Contracts (American Ed.) sec. 284, and Wald's Pollock on Contracts, p. 237 et seq. With us it is provided by statute that a contract made expressly for the benefit of a third person may be enforced by such person at any time before the parties thereto rescind it. Comp. Laws 1909, sec. 1044; Eastman Land & Investment Co. v. Long Bell Lbr. Co., 30 Okla. 555, 120 P. 276; Staver Carriage Co. v. Jones, 32 Okla. 713, 123 P. 148.
¶6 That there was a contract between Kirkbride and Love, made for the express benefit of the Kirkbride Drilling & Oil Company, is, we think, supported by the evidence, and that the contracting parties, being stockholders and officers in the company, had authority to make such a contract for the company's benefit cannot be seriously controverted. Neither is the important fact, the necessity of a sufficient consideration, wanting. T. E. Kirkbride was the president and general manager of the Kirkbride Drilling & Oil Company. B. L. Love was the owner of one-fourth of the stock in said company, and, besides, was assistant treasurer and manager of the Sachem Oil Company. The Sachem Oil Company was the owner, the Kirkbride Drilling & Oil Company the drillers, of oil well on the Julia Friday allotment. The leases taken by Carr Peterson for T. E. Kirkbride were located near this well. It was contended by Kirkbride that the leases obtained by Peterson belonged individually to said Kirkbride; while, on the other hand, it was contended by Love that the leases were for the benefit of the Kirkbride Company, and not for T. E. Kirkbride, in his individual right. The Sachem Oil Company wanted those leases, though it appears that said company, together with the Coody Oil Company and the Mid-West Oil Company, had taken other leases in that vicinity. In order to settle all differences, it was finally agreed that the Sachem Oil Company should have a one-fourth interest in the leases, taken by Peterson, for the consideration of $ 6 per acre, upon the understanding, however, that the proceeds of the sale of the leases should be paid into the treasury of the Kirkbride Company. In procuring this adjustment, Love, while interested in both the Kirkbride Drilling & Oil Company and the Sachem Oil Company, represented the latter. As a result of the contract both T. E. Kirkbride and the Kirkbride Company (whichever in fact was the owner of said lease) surrendered and gave up their interest in 400 acres of leased land, acquired by Peterson, while the Sachem Oil Company by proper assignment received the title to 300 acres thereof, and through a subsequent arrangement made by Love, McFaddin and Anderson received title to the remaining 100 acres. Aside from a question of pleading, it is a question of little importance whether these leases in fact were held by T. E. Kirkbride in his own right or for the Kirkbride Company. If individually, by the terms of the agreement the proceeds of the sale were to be placed to the credit of the Kirkbride Company, while, if the leases in fact belonged to the Kirkbride Company, the proceeds of the sale thereof would as a matter of course belong to said company. True, it was contended by the plaintiff in error that, as a result of the controversy between the parties, the leases were divided, Kirkbride taking one-half interest and Love and Johnson one-fourth interest each, and that the sale to the Sachem Oil Company and McFaddin & Anderson, being for Love and Johnson's interest, they of right were entitled to the proceeds of the sale to the Sachem Oil Company. However, the fact that payment by the Sachem Oil Company was made by draft and voucher drawn in favor of the Kirkbride Oil & Drilling Company, and that at the time Love was manager of the former company, was conversant with the transaction, in fact, had actively participated in bringing it about, furnishes strong support to the claim that the funds derived from the sale of the leases were to be paid into the treasury of the drilling company for its use and benefit, and not to be paid out or appropriated by Love and Johnson. In other words, the drilling company became the sole beneficiary of the executed contract, and there can be no question of its right to maintain an action for the recovery of the money wrongfully diverted by two of its stockholders. We have read with care the authorities cited by counsel for plaintiff in error, and find nothing therein in conflict with the foregoing conclusion.
¶7 Was the contract within the statute of frauds? Comp. Laws 1909, sec. 1089, provides that an agreement for the leasing for a longer period than one year, or for the sale of real property, or an interest therein, is void unless the same or some note or memorandum thereof be made in writing, and subscribed by the party to be charged or his agent. The leases taken by Peterson were in writing, as were the assignments thereof. Payment of the purchase price by both the Sachem Oil Company and McFaddin & Anderson was made to the Kirkbride Company, and the proceeds appropriated by Love and Johnson under claim of ownership. The action is not one to enforce the terms of an executory contract concerning an interest in real property, but it is brought to recover a specific sum of money belonging to plaintiff, the sale price of certain oil leases. As individuals, Love and Johnson have not accounted for, but, on the contrary, held the moneys received by them, which according to plaintiff's contention was to be paid to the Kirkbride Company, and not to Love and Johnson individually. Were it true that the contract was unenforceable by reason of the statute of frauds, it having been performed, the rights of the parties are no longer affected by the statute. This court in construing section 3371, Mansf. Dig. of...
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