McClelland v. Ehrig

• Decision Date: 29 February 1916
• Docket Number: 6548.
• Citation: 156 P. 307,65 Okla. 174,1916 OK 226
• Parties: MCCLELLAND v. EHRIG ET AL.
• Court: Oklahoma Supreme Court

156 P. 307

65 Okla. 174, 1916 OK 226

MCCLELLAND v. EHRIG ET AL.

No. 6548.

Supreme Court of Oklahoma

February 29, 1916

Rehearing Denied April 5, 1916.

Syllabus by the Court.

E entered into a written contract with M., by which it was agreed that E. was to convey to M. certain city lots, in consideration of M.'s procuring to be conveyed to E., by one Brown, certain farming lands. M. caused Brown to convey to E., by warranty deed, the exact lands named in the contract. E. examined the deed and the abstract of title to the farming lands, and was satisfied therewith, and conveyed the city lots to M. It later developed that Brown had no title to 10 acres of the farming lands conveyed. Held, in a suit by E. against M. for the value of the 10 acres, that the original contract for the exchange of the properties was fully executed and merged into the final deeds of conveyance, and that E. mistook his remedy, and should have sued on the breach of the covenants in the deed from Brown.

Commissioners' Opinion, Division No. 1. Error from District Court, Marshall County; Jesse M. Hatchett, Judge.

Action by Charles Ehrig against A. M. McClelland and another. Judgment for plaintiff, against defendant named, and he brings error. Reversed.

J. O Minter and J. W. Falkner, both of Madill, for plaintiff in error.

George E. Rider and E. S. Hurt, both of Madill, for defendants in error.

BREWER C.

This suit was brought by Chas. Ehrig, plaintiff below, against A M. McClelland and M. P. Brown, as defendants. For cause of action, plaintiff alleged, in substance, that on January 1 1911, he was the owner and in possession of certain real and personal property located in Madill and Ardmore, respectively, of the value of $5,000; that on said date defendants represented to him that Brown was the legal and equitable owner of certain farming lands, consisting of 155 acres; that said defendants and plaintiff entered into a written contract, by which plaintiff was to deed and deliver to McClelland his properties situated in Ardmore and Madill for the consideration of a conveyance from M. P. Brown of the 155 acres of farming lands; that in accordance with said contract plaintiff executed conveyances, conveying his properties in Ardmore and Madill to McClelland, and that Brown conveyed to him the lands that he was to receive under the contract in return for the properties he had deeded to McClelland; that in the trade between the parties it was agreed that the value of the farming lands plaintiff was receiving was $31.50 per acre. Plaintiff then alleges that defendant Brown did not own 10 acres of the tract conveyed, and had no right, title, or interest in same, and that said defendant McClelland did not convey to him title thereto; that plaintiff obtained no title whatever to said 10 acres. He then prayed for judgment against both defendants for $315 and interest, from the date of the written contract, pursuant to which the exchange of deeds was made.

At the trial the court instructed a verdict in favor of defendant Brown, evidently upon the ground that he had not signed the original contract, concerning the trade of the property, upon which the suit was based. The question as to McClelland's liability under the terms of the written contract sued on was submitted to the jury, and a verdict returned against him for $315. McClelland, as plaintiff in error, brings the case here, and urges: (1) That the court erred in overruling his demurrer to plaintiff's amended petition; (2) in admitting evidence to support same; (3) in refusing to give a peremptory instruction to find in his favor; (4) in refusing to give certain requested instructions. We shall not discuss the various assignments of error separately; for, after a somewhat careful consideration of the entire record, we are fully convinced that plaintiff below mistook his remedy.

It is clear from the record that this suit is based upon the preliminary contract under which these properties were traded. It clearly appears that plaintiff undertook to convey certain town properties in Madill and Ardmore for certain farming lands; that the deed from Brown to the farming lands,...