Orr v. Murray

• Decision Date: 02 October 1923
• Docket Number: 12071.
• Parties: ORR ET AL. v. MURRAY ET AL.
• Court: Oklahoma Supreme Court

219 P. 333

95 Okla. 206, 1923 OK 732

ORR ET AL. v. MURRAY ET AL.

No. 12071.

Supreme Court of Oklahoma

October 2, 1923

Syllabus by the Court.

An alteration of a written contract made by an agent of one of the parties thereto does not avoid the contract unless the agent had express or implied authority to make the alteration.

In order for an alteration to vitiate a written instrument, the alteration must be a material one.

Evidence examined, and held to show the instrument designated an oil and gas lease, was an absolute conveyance of the oil and gas rights for a period of 99 years, and so much longer as oil or gas are found in paying quantities.

Appeal from District Court, Stephens County; Cham Jones, Judge.

Suit by C. D. Orr and another against Frank Murray and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

Bowling & Farmer, of Pauls Valley, for plaintiffs in error.

Blanton Osborn & Curtis, of Pauls Valley, for defendants in error.

COCHRAN J.

On January, 4, 1916, plaintiff in error, C. D. Orr, purchased 160 acres of land in Stephens county, Okl. Before the deed was executed, defendant in error, Frank Murray, purchased a one-half interest in the land, and paid to Orr one-half of the initial payment. The title to the land was taken in Orr. Murray thereafter sold his interest in the land to Orr receiving $115, which he had paid Orr, one mare, certain expense money, and the conveyance which is the subject of this controversy. The plaintiff in error filed this suit to cancel the oil and gas lease, alleging that it had been materially altered after its execution, in that the instrument as executed had provided for the payment of rentals and royalties, and that these provisions had been stricken from the instrument before it was recorded, and that this provision was added:

"This lease is a part of the consideration price of the above-described land when sale was made to lessee."

The defendant in error denied the allegations as to the alterations except as to the provision which it was alleged had been added, and, as to that, admitted that it had been added after the execution of the instrument and without the knowledge of Orr, but that it was inserted by one G. H. Hope, without the knowledge or direction of the said Murray, and that the addition amounted merely to a spoliation of the instrument, and in no manner impaired its terms. The defendants in error filed their cross-petition, asking for judgment quieting their title to the oil and gas rights arising by reason of the conveyance. The trial court found that the changes in the conveyance were made at the time of the execution of the instrument except the addition, which the court found "was made by a stranger to the instrument, and is a spoliation of the instrument, and same is not such a change as would justify the cancellation of said lease contract." The parties will hereinafter be referred to as plaintiffs and defendants as they appeared in the lower court.

The plaintiff contends that the addition to the contract amounted to a material alteration of the lease and invalidated the instrument. The undisputed evidence shows that this addition was made by one Hope, and without the knowledge, direction, or authority of the defendant. The facts were that the defendant took the instrument to Hope's office for him to examine to see whether it was valid, and it remained there about six months. Hope had ascertained that the conveyance was given as a part of the consideration of the purchase price of the land, and inserted the provision in the conveyance, and in his evidence says:

"It was my idea to put it in there, so it would show the trade that was made. I don't remember whether I told him I would put it in there or not."

Plaintiff contends that, as Hope was the bailee of Murray, the rule stated in 3 Elliott on Contracts, § 2005, applies:

"The alteration of a written contract is the intentional change by a party thereto, his agent or bailee, without the consent of the opposite party, of the meaning or language of the instrument in such a manner as to affect its legal operation and mislead or injure the nonconsenting other party."

This general rule has no application, however, when the act of the bailee in making the alteration was not within the apparent scope of his authority. In Shenkberg Co. v. Porter, 137 Iowa, 245, 114 N.W. 890, the court said:

"An alteration of a written contract made by an agent of one of the parties thereto does not avoid the contract unless the agent had express or implied authority to make the alteration."

A portion of the syllabus in Clyde S. S. Co. v. Whaley, 231 F. 76, 145 C. C. A. 264, L. R. A. 1916F, 289, is as follows:

"A material change in a written instrument avoids it against one party only when it is made by the other party or with his consent, and an alteration by a stranger, or by an agent without authority, is only a spoliation, not affecting the instrument's validity."

To the same effect are Edwards v. Thompson, 99 Wash. 188, 169 P. 327; White Sewing Machine Co. v. Dakin, 86 Mich. 581, 49 N.W. 583, 13 L. R. A. 313; Miller v Stark, 148 Pa. 164, 23 Atl 1058; Gleason v. Hamilton, 138 N.Y. 353, 34 N.E. 283, 21 L. R. A. 210; Deering Harvester Co. v. White, 110 Tenn. 132, 72 S.W. 962; Commonwealth Nat. Bank of Dallas v. Baughman, 27 Okl. 175, 111 P. 332.

The change having...