Montana and Wyoming Oil Company v. Gibson

• Decision Date: 28 February 1911
• Docket Number: 630
• Parties: MONTANA AND WYOMING OIL COMPANY v. GIBSON ET AL
• Court: Wyoming Supreme Court

113 P. 784

19 Wyo. 1

MONTANA AND WYOMING OIL COMPANY v. GIBSON ET AL

No. 630

Supreme Court of Wyoming

February 28, 1911

ERROR to the District Court, Sheridan County, HON. CARROLL H PARMELEE, Judge.

The material facts are stated in the opinion.

Affirmed.

Ridgely & West, for plaintiff in error.

One of the leases in question was entered into during the month of February, 1908, and the other leases between the 1st of April and the last of September, 1906. Those executed in 1906 were for the period of two years and upon certain conditions, viz Upon performance of a certain amount of development work by the lessee and the discovery of oil or gas in paying quantities the lease would run for ten years. The lease executed in February, 1908, was for a period of six months and under certain conditions might be extended for the period of ten years. The plaintiff was the owner of said leases in the months of January, February, March and April, 1908, and when the negotiations between the plaintiff and the defendants were opened and the contract completed under which the plaintiff claimed to be entitled to the property taken upon the writ of replevin. Considering the leases as expiring at the date when the condition precedent to their continuance in force was to be performed, only two provisions of the statute of frauds could in any event be applied to the contract under which the plaintiff claimed, viz: The first and fifth sub-divisions of the statute--they referring to agreements not to be performed within a year and contracts for the sale of real estate, or leases thereof for more than one year. To bring the contract within either of said subdivisions it is necessary to show that the agreement could not be performed within a year, and if it contained a condition or clause whereby it might be terminated within a year the agreement would not come within the statute. By this statement particular reference is had to the fifth subdivision, relating to the lease of land for the term of more than one year. (Lawson on Contracts, 81.) A parol assignment thereof will be valid. (18 Ency. Law, 679.) The unexpired portion of all of the leases was less than one year, and hence they cannot be considered as leases for more than a year or contracts not to be performed within a year. For that reason we contend that the statute of frauds does not apply.

Conceding for the purpose of the argument that the statute does apply and that was the theory taken by the trial court, the plaintiff offered in evidence the record of a meeting of the directors of the plaintiff company, wherein the draft of the agreement made between the parties hereto was ratified and the execution thereof on the part of the company directed. This record was signed by the president and secretary of the company. It is not necessary that the memorandum referred to in the statute be contained in one instrument. The contract may be binding if there are in existence other instruments signed by the party to be charged referring back to the instrument sought to be enforced. The ratification by the plaintiff's directors was a sufficient compliance with the statute. (Brown on Statute of Frauds, 5th Ed., 469.) We contend further that the party to be charged within the meaning of the statute of frauds is the grantor, or, in this case, the plaintiff. The defendants entered into possession of the premises and the enjoyment of their contract, and by doing so they accepted the contract and waived the formality of their signature thereto. The same rule should apply as in the case of a warranty deed containing a condition that the grantee agrees to assume the payment of certain indebtedness. The lessee need not sign a lease, but by his acceptance of it he becomes bound by its provisions. (Thornton on the Law of Oil and Gas, 102.)

The judgment should have been in the alternative, permitting the plaintiff to return the property if it desired to do so, instead of paying the damages. Excessive damages were awarded.

E. E. Enterline, for defendants in error.

Assuming that the alleged oral agreement was void under the statute of frauds, it was proper to raise the question by a motion to strike out the testimony by which it was attempted to be established. (Williams-Hayward Shoe Company v. Brooks et al., 9 Wyo., 424.) As a general rule, where the creation of an interest is required to be in writing, the transfer or the assignment of that interest must likewise be in writing. Thus a lease for a term of more than one year can only be transferred in writing, even if the assignee takes possession and pays a portion of the rent. The actual occupancy of the premises and payment of rent to the lessor for part of an unexpired term by an assignee, pursuant to a contract of assignment with the lessee, which is not in writing, is not sufficient to exempt such assignment from the statute of frauds, where the assignee vacates before the term expires and is sued for subsequently accruing rent. (Smith on Fraud, Sec. 367; Johnson v. Redding, 36 Mo. App., 306; Smith v. Smith, 9 Ky. L. Rep., 100; Smith v. Perkins (Ky.), 24 S. W., 722; Frank v. N. Y. R. Co., 7 N. Y. St., 814; Winberry v. Koonce, 83 N. C., 351; Chicago Co. v. Davis Sewing Co., 142 Ill. 171, 31 N.E. 438; Taylor, Land & Ten., 2nd Ed., Sec. 426; Sexton v. Chicago Storage Co., 129 Ill. 318, 31 N. E., 920; Brown on Stat. of Frauds, Sec. 41; Reed on Stat. of Frauds, Sec. 776; Briles v. Pace, 13 Ired. L., 279.) A contract for the transfer of a lease is one for an interest in or concerning land and hence within the statute of frauds. (Kingsley v. Sebrecht, 92 Me. 23, 69 Am. St., 486.) An agreement to make a contract for the sale of lands must itself comply with the statute of frauds in all the essential respects or it will be void. (Land Co. v. Jackson, 121 Ala. 172; Sands v. Thompson, 43 Ind. 18; Reecker v. Steelman, 73 Ind. 396; Lawrence v. Chase, 54 Me. 196; Lyons v. Bass, 108 Ga. 573, 34 S. E., 721.) As the leases in question were each for a term of twelve years, and some of them even for a longer period, the statute of frauds clearly applies, and the court very properly excluded all the evidence of the oral agreement to assign them.

The agreement to assign was never executed by either party, and even if it had been authorized by the plaintiff company by and through its officers, that would be wholly immaterial, for the reason that the defendants never executed it, and they are the parties sought to be charged. There is no provision in the statute for an alternative judgment in replevin where the property has been delivered to the plaintiff upon his executing an undertaking as provided by the statute. That the judgment rendered was the proper one has been settled by this court. (Turner v. Horton, 18 Wyo. 281, 106 P. 688.) It is suggested, but not very strongly urged, that the evidence is insufficient to sustain the amount of damages assessed by the court in its finding. The case last cited is authority for the proposition that an error in the amount of recovery cannot be raised on the ground of the insufficiency of the evidence. The question was perhaps properly raised in the motion for new trial, but, assuming that it was, we think it cannot be doubted that the judgment is sustained by sufficient evidence.

BEARD, CHIEF JUSTICE. SCOTT and POTTER, JJ., concur.

OPINION

BEARD, CHIEF JUSTICE.

The plaintiff in error brought this action in the district court against the defendants in error to recover the possession of certain oil well drilling machinery and supplies, to which it claimed title and the right of possession. The case was tried to the court without a jury. The court found generally for the defendants; and specially that defendants Gibson, Veitch and Miller were, at the time of the commencement of the action and prior thereto, the owners of said property and had the right of property and right of possession thereof at the time of the commencement of the action, and at the time the same was taken from their possession on the writ of replevin that the value of the property at the time it was so taken from said defendants was $ 5,625.00. Judgment was rendered in favor of...