Murphy v. Cole, 39210

• Citation: 175 Kan. 822,267 P.2d 959
• Decision Date: 06 March 1954
• Docket Number: No. 39210,39210
• Parties: MURPHY et al. v. COLE et ux.
• Court: Kansas Supreme Court

Page 959

267 P.2d 959

175 Kan. 822

MURPHY et al. v. COLE et ux.

No. 39210.

Supreme Court of Kansas.

March 6, 1954.

Syllabus by the Court.

1. Errors relating to matters occurring at the trial of an action and for which a new trial is asked, cannot be considered on appeal unless the action of the trial court in overruling the motion for a new trial is specified as error.

2. Where real estate is sold under an oral contract and the seller accepts part payment of the consideration from the purchaser and confers possession of the real estate upon him, in a subsequent action by the purchaser for specific performance, the seller cannot defeat the action by setting up the statute of frauds.

3. The record examined in an action to compel specific performance of an oral contract to sell real estate, and held, the trial court did not err in its judgment ordering specific performance.

Richard B. Stevens, and John W. Brand, Lawrence, were on the brief for appellants.

Forrest A. Jackson, Lawrence, was on the brief for appellees.

THIELE, Justice.

This was an action to compel specific performance of an oral contract for the sale of real estate and from a judgment ordering performance the defendants appeal to this court, where they specify as error: 1. The trial court's failure to sustain their demurrer to the plaintiffs' evidence; 2. The overruling of their objections to the introduction of certain testimony; and 3. The admission in evidence of certain exhibits.

It may be observed that specifications 2 and 3 refer to trial errors. Appellants did file a motion for a new trial which was overruled but that ruling is not specified as error. We have repeatedly held that errors relating to matters occurring at the trial, for which a new trial is asked, cannot be considered on appeal unless the action of the trial court in overruling the motion is specified as error. See cases collected in West's Kansas Digest, App. & E., k719(10) and Hatcher's Kansas Digest, App. & E., § 181.

In their brief appellants do not discuss separately their claims of error but contend generally that the judgment of the trial court was based on incompetent evidence and their demurrer should have been sustained. By reason of the rule above noted, we consider only whether on the evidence adduced by the appellees, the demurrer was ruled on correctly, and the only question is whether enforcement of the contract was precluded by the statute of frauds, G.S.1949, 33-106.

For present purposes review of the evidence may be limited. That evidence showed that Mr. & Mrs. Cole owned some lands and they called on Mr. & Mrs. Murphy to inquire if the Murphys wished to purchase and received an affirmative answer. The next day Mr. Murphy saw Mr. Cole and a price of $500 plus one-half of the cost of an abstract of title was agreed on and Murphy then gave Cole a check for $250 which he cashed. An abstract of title was ultimately prepared and given Murphy for examination. Cole had some difficulty in getting a correct description of the land being sold but ultimately did so and thereafter a deed was executed by Cole and his wife and sent by Cole to his agent for delivery whenever Murphy would pay the balance due. After the original talks and prior to the date the deed was executed, Cole wrote Murphy a letter saying he didn't know whether or not he had told Murphy to go ahead with the tract and do what he pleased with it; that he intended to. Murphy did go into possession, changed fences to inclose the ground with his own, placed some of his personal property thereon, plowed the ground and treated and considered it as his own. After the transaction was initiated the state condemned a part of the land and paid into the office of the clerk of the district court the sum of $185 which was paid to Cole. At a later date the Murphys tendered to the Coles the balance of the purchase price, less the $185 Cole had received, at which time Cole directed his agent not to complete the transaction by delivery of the deed. No point is made as to the $185 payment. It is appropriate here to note that thereafter the instant action was commenced. The petition alleged the ultimate facts shown by the above evidence. The Coles answered by a general denial, and alleged that if there was an oral contract it was not binding on them for the reason it was not in writing, and that if Murphys had taken possession of the real estate, such possession should be restored to the Coles. The answer contained no tender of the payments made by the Murphys to the Coles.

On the principal question that the oral contract is unenforceable by reason of the statute of frauds, appellants contend that part payment of the consideration does not take the case out of the statute, citing Engelbrecht v. Herrington, 103 Kan. 21, 172 P. 715, L.R.A.1918E, 785, and Riffel v. Dieter, 159 Kan. 628, 157 P.2d 831, and that possession of the land does not have that effect, citing Baldwin v. Baldwin, 73 Kan. 39, 84 P. 568, 4...