Owens v. Purdy
| Decision Date | 17 July 1923 |
| Docket Number | 14158. |
| Citation | 217 P. 425,90 Okla. 256,1923 OK 511 |
| Parties | OWENS ET AL. v. PURDY ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Section 174, C. L. 1921, provides:
"Actions are of two kinds: First, civil; second, criminal."
Section 175, Id., defines a criminal action.
Section 176, Id., says:
"Every other is a civil action."
Section 178, Id., says:
"The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing are abolished; and in their place there shall be, hereafter, but one form of action, which shall be called a civil action."
Section 231, Id., provides:
"A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon."
Section 263, Id., provides:
"The rules of pleading heretofore existing in civil actions are abolished; and hereafter, the forms of pleadings in civil actions in courts of record, and the rules by which their sufficiency may be determined, are those prescribed by this Code."
Section 264, Id., provides:
"The only pleadings allowed are:
First. The petition by the plaintiff.
Second. The answer or demurrer by the defendant.
Third. The demurrer or reply by the plaintiff.
Fourth. The demurrer by the defendant to the reply of the plaintiff."
Section 265, Id., provides:
"The petition must contain:
First. The name of the court, and the county in which the action is brought, and the names of the parties, plaintiff and defendant, followed by the word 'petition.'
Second. A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition.
Third. A demand of the relief to which the party supposes himself entitled. * * *"
The prayer does not of itself determine the relief to which a party is entitled, nor the measure of relief to be applied.
A substantial compliance with our Code provisions relating to civil actions is mandatory.
Where the facts stated in a petition show that plaintiff has sustained a detriment without fault on his part; that such detriment has been caused by the wrongful conduct of another; said facts which show the liability of the party guilty of such wrongful conduct--it then becomes the duty of the court to determine from the allegations and proof, the relief in law or equity to which the plaintiff may be entitled.
(a) District courts of this state are endowed with the dual power of a chancellor and court at law, so that under the facts stated and proved in a civil action, if the law be adequate, the court will award such relief as the law authorizes, but if the law be inadequate to proper relief, then the court under its powers as a chancellor will award such relief as in equity and good conscience the allegations and proof show the plaintiff entitled to receive.
Where a prayer is for specific performance, and the facts stated in the petition are not sufficiently definite to enable the court to determine what specific things are required to be done, it is not error to refuse to make an order for specific performance.
(b) But where the prayer is for general relief, a court will then grant such relief as under the facts the plaintiff is entitled to receive.
Although the prayer be for specific performance and also for general relief, it is error to sustain a general demurrer, if the facts stated in the petition show plaintiff entitled to any relief.
Appeal from Superior Court, Creek County; Gaylord R. Wilcox, Judge.
Suit by O. O. Owens and another against A. H. Purdy and others. From a judgment for defendants, plaintiff appeals. Reversed, and remanded with directions.
Where a prayer is for specific performance, and the facts stated in the petition are not sufficiently definite to enable the court to determine what specific things are required to be done, it is not error to refuse to make an order for specific performance.
Moss & Owen, Jas. A. Veasey, C. M. Oakes, and Walter Davison, all of Tulsa, for plaintiffs in error.
Cheatham & Beaver, of Bristow, for defendants in error Purdy & Combs.
Thrift & Davenport, of Sapulpa, for other defendants in error.
This was a suit to compel specific performance of a written contract to convey the oil, gas, and other mineral interests in certain tracts of land, and for general relief. The trial court sustained a demurrer to the amended petition, and the cause is here on the question whether a cause of action is therein stated. The material facts alleged are:
On November 6, 1920, it having been represented by defendant Purdy that he had and would convey to plaintiff Owens a valid merchantable title to the oil, gas, and other mineral interests in and to certain tracts of land, said plaintiff and defendant entered into a written contract, to wit:
It is further alleged: That plaintiff paid $5,000 in cash at the time the above contract was made, leaving a balance of $15,000 due and to be paid upon Owens' approval of the title. That Purdy executed conveyances to said property as provided in the written contract, but Owens disapproved the title to one of the tracts because it was found that Purdy had no title thereto; another tract was disapproved because of certain irregularities in probate proceedings which were deemed to be of such character as to render the title defective. That Owens promptly reported the discovery of these defects to Purdy, and that Purdy acknowledged the effect of same. That thereupon, on January 22, 1921, Purdy and Owens met for the purpose of adjusting the written contract to the defects discovered as aforesaid, at which time it was agreed between them that the tract to which Purdy had no title should be eliminated and that therefore the balance of $15,000 due, under the written contract, should be reduced in the sum of $1,250, leaving a balance of $13,750 due. That it was agreed that upon the immediate institution of suits by Purdy to cure the irregularities in the probate proceedings and to clear and perfect the title to the tract affected thereby, Owens would meet the $13,750 balance due, and both agreed that the said written contract be so modified that Owens should meet such balance of $13,750, by executing three promissory notes, one for $4,000 dated January 22, 1921, due in 30 days, payable to the First State Bank of Bristow for the benefit of Purdy, another note for $4,000, due in 60 days, payable as aforesaid, and the third note for $5,750, payable to the order of Purdy, due in 60 days. That to secure the payment of said notes, it was agreed that Owens should deposit as collateral security three certain promissory notes of the Riverside Oil & Refining Company. That, pursuant to said oral agreement, Owens executed the three notes and deposited same in the bank with the said three Riverside Oil & Refining Company notes as collateral. That thereupon and pursuant to the terms of the written contract, as thus modified by oral agreement, the parties agreed upon a form of deed which Purdy should execute, and that Purdy signed and acknowledged the deed agreed upon, but retained possession of same, agreeing to deliver it to Owens upon payment of the aforesaid notes. That payment of such notes was conditioned upon Purdy's filing suits to cure the irregularities in said probate proceedings and to quiet title. A copy of said deed is attached to the petition.
It is further alleged: That Purdy failed and refused to institute the suits which he promised to bring. That, upon refusal by Purdy to institute said suits before the first note became due, Owens at his own expense brought suit and cleared the title to one tract. That Owens made frequent demands of Purdy to bring the suits he had promised to bring. That Purdy refused to bring said suits, but on or about March 12, 1921 agreed that one suit should be filed. That through the efforts of Owens said suit, known as the Taborn Case, was filed, but that Purdy failed to fulfill his oral agreement to obtain the appointment of a guardian ad litem in said suit (minor's interests being involved). That Purdy's procuring the appointment of a guardian ad litem in said cases was a condition upon which Owens was to pay said three promissory notes. That notwithstanding Purdy's failure to fulfill his agreements, on June 9, 1921, he tendered to Owens the deed which as aforesaid had been executed by Purdy, but retained by him, which deed thus tendered purported to convey the land described and agreed to be conveyed in the written contract with...
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