Schilling v. Vir

Decision Date14 May 1912
Docket NumberCase Number: 1767
Citation34 Okla. 155,1912 OK 408,125 P. 487
PartiesSCHILLING v. MOORE et vir.
CourtOklahoma Supreme Court
Syllabus

¶0 1.SPECIFIC PERFORMANCE--Contracts Enforceable--Employment of Real Estate Agent.A contract appointing an agent to sell real estate, and agreeing to deliver deeds therefor as sold, anti providing that the real estate agent retain all the proceeds in excess of the amount specified, is not one which can be enforced by a decree of specific performance.Such a contract is a contract of employment, and conveys no interest in the real estate.

2.PRINCIPAL AND AGENT--Construction of Contract--Power Coupled With Interest.An interest in the property upon which the power is to operate, and not merely an interest in the exercise of the power, is essential to make a power of attorney one coupled with an interest.

3.PLEADING--Allegations in General--Presumptions.After a party has amended his petition three times, and a demurrer is again sustained to it, no presumption will be indulged in favor of the pleading.

6.SAME--Demurrer--Grounds.While an action which is improperly brought for specific performance may be retained by the court for the purpose of rendering damages for breach of the contract, yet, if the petition, after repeated amendments, neither states a cause of action for specific performance, nor for damages for the breach of the contract, a general demurrer thereto should be sustained.

W. A. Smith, for plaintiff in error.

S. A. Horton, for defendants in error.

AMES, C.

¶1 This action was brought for the specific performance of the following contract:

"Capitol Hill, Okla., December 21, 1908.We, the undersigned, this day appoint H. C. Schilling, or his assignees, exclusive agent for a period of twelve months, to sell and dispose of lots 1, 2, 3, 4, 5, 38, 39, 40, 41 and 42, in block 35, Schilling's addition, supplemental plat, to Oklahoma City, Oklahoma, and we agree to deliver a warranty deed for the same at the rate of $ 150.00 per each lot, or its portion, at his request, at any time without delay, and that the said H. C. Schilling agrees to use quick and speedy means to bring about said sale, and should it become necessary to subdivide the said lots that extra expense shall be paid by H. C. Schilling, such as survey, replatting and filing said plats, etc.At the expiration of the time stipulated, if the property is not sold he may continue said agency by paying eight (8) per cent. interest upon the parts unsold, and should it become subdivided we agree to make deeds to the same pro rata upon prices stipulated above.[Signed]Mattie J. Moore, Samuel D. Moore, H. C. Schilling."

¶2 An examination of this contract discloses that there was a mere employment of the plaintiff as a real estate agent, and that his compensation for services rendered in the sale of the lots was to be that portion of the purchase price in excess of the amount to be paid the defendants.Such a contract does not convey any interest in the land, and therefore is not one which is required to be in writing.Hancock v. Dodge, 85 Miss. 228, 37 So. 711;Friedman v. Suttle, 10 Ariz. 57, 85 P. 726, 9 L.R.A. (N.S.) 933, and the authorities cited in the note following this report.It is not a power of attorney coupled with an interest.The test to be applied is stated in Taylor v. Burns, 203 U.S. 120, 27 S. Ct. 40, 51 L. Ed. 116, as follows:

"An interest in the property upon which the power is to operate, and not merely an interest in the exercise of the power, is essential to make a power of attorney one coupled with an interest, so as not to be subject to revocation."

¶3 To the same effect are Hunt v. Rousmaniere, 8 Wheat. 174, 5 L. Ed. 589;Durkee v. Gunn, 41 Kan. 496, 21 P. 637, 13 Am. St. Rep. 300;Taylor v. Burns, 8 Ariz. 463, 76 P. 623.The facts in Taylor v. Burns, supra, were stronger than in this case, as appears from the statement thereof in the first paragraph of the syllabus:

"No transfer of title was effected by an instrument which recites that the party of the first part 'sells' certain mining claims to the party of the second part for a specified consideration, and 'upon the terms and consideration following,' and which, in its subsequent provisions, authorizes the party of the second part to sell and negotiate the mines for any sum above $ 45,000, and retain out of the purchase price seven-eights of the excess; the party of the first part agreeing to execute any conveyance thereafter necessary to convey a good title, and the party of the second part assuming no obligations except a general one by which both parties mutually agree to aid each other in the negotiation and sale.Such document is not a deed, but simply a power of attorney, and, as such, subject to revocation."

¶4 As the plaintiff by this contract acquired no interest in the real estate, he was not entitled to a decree for specific performance.In Kimmell v. Powers, 19 Okla. 339, 91 P. 687, action was brought by Kimmel against Powers to secure the specific performance of a contract by which Kimmel was appointed as exclusive agent for the sale of the Woods addition to the city of Lawton, for a period of ten years, under an agreement by which he was to receive as compensation for his services a percentage of the net proceeds of sales and 25 per cent. of the unsold portions of the addition at the expiration of the contract.The court held that this contract created the relation of principal and agent; that it did not vest in the agent any interest in the real estate itself; and that therefore he was not entitled to a specific performance.In Cloe v. Rogers, 31 Okla. 255, 121 P. 201, the rule is stated in the syllabus (paragraph 2) as follows:

"Where an agency is uncoupled with an interest, it may be revoked by the principal at will, without liability for damages; but where it is for a fixed time, and contemplates on the part of the agent
...

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex
7 cases
  • Fretz v. City of Edmond
    • United States
    • Oklahoma Supreme Court
    • 2 May 1916
    ...Botkin, 26 Okla. 218, 109 P. 531, 29 L. R. A. (N. S.) 786, 138 Am. St. Rep. 953; Atwood v. Rose, 32 Okla. 355, 122 P. 929; Schilling v. Moore, 34 Okla. 155, 125 P. 487. ¶7 And that:"The rule of construction in such cases is that a material fact not alleged in a pleading is presumed not to e......
  • Okmulgee Producing & Ref. Co. v. Baugh
    • United States
    • Oklahoma Supreme Court
    • 9 January 1925
    ...et al. v. Washington, B. & A. Electric Ry. Co. (Md.) 92 A. 917; Superior Oil & Gas Co. v. Mehlin, 25 Okla. 809, 108 P. 545 Schilling v. Moore, 34 Okla. 155, 125 P. 487; Owens v. Purdy, 90 Okla. 256, 217 P. 425; Fraley v. Wilkinson et al., 79 Okla. 21, 191 P. 156. ¶14 In the case of Owens et......
  • Lusk v. Porter
    • United States
    • Oklahoma Supreme Court
    • 14 March 1916
    ...Botkin, 26 Okla. 218, 109 P. 531, 29 L.R.A. (N. S.) 786, 138 Am. St. Rep. 953; Atwood v. Rose, 32 Okla. 355, 122 P. 929; Schilling v. Moore, 34 Okla. 155, 125 P. 487. As said in the first-named case:"In a case where a pleading is challenged before trial by demurrer, its language, where doub......
  • State ex rel. Mothersead v. Kelly
    • United States
    • Oklahoma Supreme Court
    • 7 January 1930
    ...favor of their petition. This court has held that as applied to a third amended petition no presumptions may be indulged. Schilling v. Moore, 34 Okla. 155, 125 P. 487: "After a party has amended his petition three times and a demurrer is again sustained to it, no presumption will be indulge......
  • Get Started for Free

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT