Sarber v. Harris
| Decision Date | 09 January 1962 |
| Docket Number | No. 39185,39185 |
| Citation | 368 P.2d 93 |
| Parties | Bud SARBER, Plaintiff in Error, v. John HARRIS, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. The Supreme Court will not inquire on appeal into the sufficiency of evidence to sustain a verdict, where defendant does not challenge the evidence by demurrer or motion for a directed verdict and the question is raised for the first time in the motion for a new trial.
2. An action for money had and received will lie to recover payment made under an unenforceable, ineffective, incompleted or rescinded contract.
3. The trial court must, on its own motion, properly charge the jury on issues raised by the pleadings and evidence in the case, but instructions which submit the vital features of the tenable legal theories of both litigants upon the issues involved are sufficient.
Appeal from the Superior Court of Seminole County; Bob Aubrey, Judge.
Action by John Harris against Bud Sarber to recover deposit for part payment upon the purchase price of realty. Defendant appeals from an adverse judgment of the trial court. Affirmed.
Sims & Cooper, Seminole, for plaintiff in error.
Dick Bell, Seminole, for defendant in error.
John Harris, plaintiff below, instituted this action against Bud Sarber, defendant below, to recover a deposit of $500.00 for part payment upon the purchase price of realty. The trial resulted in a judgment for the plaintiff and defendant has brought this appeal. Our continued reference to the parties will be by their designation in the lower court.
According to plaintiff's evidence, he 'never actually agreed to buy' defendant's property, and the check for $500.00, executed and delivered to defendant by plaintiff's mother, represented merely 'good faith money' which, pursuant to the parties' understanding, was not to be cashed, but was to be held by defendant until negotiations became completed. As disclosed by defendant's version of the transaction, he granted plaintiff an option to buy his property on or before a day certain, and when plaintiff declined to purchase on that day, defendant became entitled to retain the consideration as, or in lieu of, 'liquidated damages'. The transaction rests entirely in parol. There is no written 'note or memorandum' subscribed by either of the contestants. From the inception of their dealings, the parties contemplated that an agreement in writing would be entered by them at a later date. It stands admitted that plaintiff refused to execute a written contract because of defendant's alleged misrepresentation as to the value of, and income from, the property to be sold.
Defendant asserts error in submitting to the jury the issue of whether the parties did actually enter into a verbal contract for the sale of realty. The factum on such oral agreement, we are urged, was not open to controversy, but stood admitted by the plaintiff whose very right to recover was predicated and necessarily dependent upon the breach thereof by the defendant. It is argued that the trial court should have affirmatively instructed or informed the jury 'as a matter of law' concerning the existence of the oral contract between the parties.
In giving consideration to the argument so advanced, we need not immediately concern ourselves with the matter of whether the negotiations between the parties had culminated in a complete understanding and meeting of the minds upon the essential terms of the intended transaction. The contract, if one were in fact entered into, was for the sale of real property. It rests entirely in parol and the record fails to disclose any such acts of performance as will take the alleged agreement outside the Statute of Frauds. The law is settled that partial payment of the purchase price by vendee of real estate is not in itself sufficient to satisfy the requirements of this statute. 15 O.S.1951 § 136, subd. 5; Fry v. Penn Mut. Life Ins. Co., 195 Okl. 507, 159 P.2d 550; Nichlos v. Edmundson, 105 Okl. 202, 232 P. 68; Bahnsen v. Walker, 89 Okl. 143, 214 P. 732; Adams v. White, 40 Okl. 535, 139 P. 514; Levy v. Yarbrough, 41 Okl. 16, 136 P. 1120; Halsell v. Renfrow, 14 Okl. 674, 78 P. 118, 2 Ann.Cas. 286. See also Harris et al. v. Arthur, 36 Okl. 33, 127 P. 695. It therefore follows that even if, as defendant asserts, there was an oral contract for the sale of real property, such, under the facts, was manifestly unenforceable and invalid under the statute of frauds, and no action could lie by either the buyer or the seller to recover damages for the breach thereof. Fox v. Easter, 10 Okl. 527, 62 P. 283.
As reflected by the evidence, plaintiff did not attempt to enforce an oral contract, nor did he seek damages for its breach. Rather, his action was one for recovery of the deposit made by him in course of negotiations upon the purchase price. There is a marked distinction between enforcing an ineffective or incompleted agreement and asserting title to money paid thereunder. In the latter case, the action is not one for breach of contract, but for money had and received. It lies whenever one has the money of another which he, in equity and good conscience, has no right to retain. While it is an action at law triable to a jury, its determination is controlled by principles of equity and fair dealing. Thurlwell v. Rabbit, 110 Okl. 285, 235 P. 923; Rogers v. Lassiter, 196 Okl. 228, 164 P.2d 632, 633. An action for money had and received will lie to recover payment made under an unenforceable, incompleted or rescinded contract. 4 Am.Jur. 517, 518 'Assumpsit', Sec. 27; 58 C.J.S. 'Money Received' § 6, p. 916. See also Roussel v. Russell, Okl., 339 P.2d 522, 527; Cone v. Ariss, 13 Wash.2d 650, 126 P.2d 591; Jones v. Goldberger, Okl., 323 P.2d 344.
Although both litigants had a verbal understanding that the total consideration for the property was $25,000.00, of which $7500.00 would be paid in cash, there was little or nothing to show that their minds had actually met and were in accord either...
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Booker v. Sears Roebuck & Co., 69685
...to be recovered was established in bad faith, contractor was entitled to prevail against homeowner in quasi contract; Sarber v. Harris, Okl., 368 P.2d 93, 95-96 (1962), where it was held that when a vendee advances money in part performance of an oral sales contract that is unenforceable un......
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...an action on a common count, such as for money had and received or quasi-contract, is an action at law that is triable to a jury. Sarber v. Harris, 1962 OK 4, ¶ 5, 368 P.2d 93, 95; Sholer v. State x rel. Dep't Public Safety, 1997 OK 89 n. 4, 945 P.2d 469, 479 n. In Welling v. American Roofi......
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Sholer v. State ex rel. Dept. of Public Safety
...right of retention. While the action is triable to a jury, it is controlled by principles of equity and fair dealing. Sarber v. Harris, 368 P.2d 93, 95 (Okla.1962); Thurlwell v. Rabbit, 110 Okla. 285, 235 P. 923, 926 (1925). At the early common law an action for money had and received was o......
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...Sec. 150 (1937). Cf. Beard v. Pierson, 418 F.2d 785, 786 (10th Cir.1969) (repayment necessary after contract rescission); Sarber v. Harris, 368 P.2d 93, 95 (Okla.1962) (action for money "had and received" appropriate "whenever one has the money of another which he, in equity and good consci......