Martin v. Spaulding

• Decision Date: 16 December 1913
• Citation: 137 P. 882,40 Okla. 191,1913 OK 711
• Parties: MARTIN v. SPAULDING ET UX.
• Court: Oklahoma Supreme Court

137 P. 882

40 Okla. 191, 1913 OK 711

MARTIN v. SPAULDING ET UX.

Supreme Court of Oklahoma

December 16, 1913

Syllabus by the Court.

The vendee, in a contract for the sale of real estate, is not bound to take a title which is not marketable. He may however, accept a deed and look to the vendor upon his warranty for compensation for any loss he may sustain through inability to give him a perfect title; but he also has the right to abandon the contract and refuse to make the purchase.

Whether a contract is abandoned is a question of fact, to be determined by the court or jury from all the facts and circumstances of the particular case.

Where the testimony is oral and conflicting, and the finding of the court is general, such finding is a finding of every special thing necessary to be found to sustain the general finding and is conclusive upon this court upon all doubtful and disputed questions of fact.

Evidence examined, and held sufficient to establish the abandonment of the contract herein involved.

The rule that a vendor, when he elects to rescind a contract for the sale of real estate, "must restore to the other party everything of value which he has received from him under the contract" (section 986, Rev. Laws 1910) does not apply to the defendant in a suit for specific performance commenced by the vendee, where the vendor pleads an abandonment of the contract for the purpose merely of defeating the plaintiff's demand, and does not set up any affirmative equitable defense or claim any affirmative relief.

Error from District Court, Muskogee County; R. P. De Graffenried Judge.

Action by Frank L. Martin against Homer B. Spaulding and wife. Judgment for defendants, and plaintiff brings error. Affirmed.

A. A Davidson, Kline & Gotwals, and Geo. S. Ramsey, all of Muskogee, for plaintiff in error.

Bailey, Wyand & Moon, of Muskogee, for defendants in error.

KANE J.

This was a suit for specific performance of a contract concerning real estate, commenced by the plaintiff in error, plaintiff below, against the defendants in error, defendants below. Upon trial to the court, there was a general finding and decree in favor of the defendants, to reverse which this proceeding in error was commenced. It seems that the defendants, who were the owners of the real estate involved, entered into a written contract with the plaintiff, whereby, in consideration of $1,900, to be paid by the plaintiff as follows: $50 cash in hand; $50 on the 4th day of February, 1905, and the balance on or before the 4th day of March, 1905; the defendants agree to execute and deliver to the plaintiff a good and sufficient warranty deed to said premises, the same to be free from all incumbrances whatsoever. For the purpose of this case, we may assume that the contract was fully performed up to the said 4th day of February, 1905. Upon that date, it is agreed, the defendants were unable to furnish a marketable title to the land on account of the pendency of what is known as the "Haskell suit," wherein the title thereto was involved. On the last-mentioned date the parties to the contract met by agreement at the City National Bank, and as to what transpired there, the defendant Homer B. Spaulding testified as follows: "I went in there [into the bank] with him, and Mr. Hogan came to the window with a sack of money, and said: 'I have some money here for you,' and Mr. Martin said, 'We want to tender you the money for these lots over there,' and I said, 'All right; I am willing to make you a deed to the lots and take your money,' and he said: 'But you can't make a good deed. Your deed would not be any good, because Mr. Haskell has a suit'--and I said I did not think it would amount to anything, and I would make a bond to fix the title, and he walked to the desk and had a little talk, and he said he would see me about it, and some time after that I went to see him about it. Q. What kind of a proposition did you make him about the bond? A. Told him I would make a bond, and give Walter Howard, and put up my home place on it. Q. What was your home place worth? A. Ten or fifteen thousand dollars. Q. What did he finally decide to do? A. That was about all and I met him again after that, and he asked me what kind of terms I would give him on the two lots if he accepted the bond for title. Q. The same lots? A. Yes, sir; and I said, if he would pay $500 cash, I would sell him the lots for that and make the balance due in 6 and 12 and 18 months each, and he said he would see me about that. Q. How long was that after the transaction in the bank? A. Not very long; possibly a week or maybe a month. Q. Proceed. A. He seemed to think that would suit him, and the last talk I had, he said he would figure on it and if I would let him pay $200 cash and divide the balance in 6 and 12 and 18 months, he would figure on it, and I told him that would not do me any good. Q. When was this conversation? A. It all happened in about a few months. Q. Did you have any other conversation in regard to the matter? A. No, sir." In April, 1905, H. B. Spaulding sold the lots in controversy to his wife, Josie C. Spaulding. On the 6th day of February, 1909, nearly four years after the tender, the plaintiff commenced this suit. On the 30th day of October, 1909, prior to the trial of this cause, the "Haskell suit" was finally settled and dismissed, and the defendants were then able to convey a clear title to the plaintiff.

The only question in the case of any seriousness is whether the evidence adduced at the trial reasonably tends to show that when it became apparent that the defendants could not perform the contract according to its terms and tenor, the plaintiff abandoned the same. The court below found there was an abandonment of the contract; and under the oft-repeated rule, if there is any evidence reasonably tending to support the findings of the court below, they will not be disturbed. "Where the testimony is oral and conflicting, and the finding of the court is general, such finding is a finding of every special thing necessary to be found to sustain the general finding, and is conclusive upon this court upon all doubtful and disputed questions of fact." McCann v. McCann, 24 Okl. 264, 103 P. 694. Wat-Tah-Noh-Zhe et al. v. Moore, 36 Okl. 631, 129 P. 877.

It is well settled that a vendee in a contract for sale is not bound to take a title which is not marketable. The plaintiff herein doubtless had a right to accept...