Schilling v. Vir
Decision Date | 14 May 1912 |
Docket Number | Case Number: 1767 |
Citation | 34 Okla. 155,1912 OK 408,125 P. 487 |
Parties | SCHILLING v. MOORE et vir. |
Court | Oklahoma Supreme Court |
¶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.
¶1 This action was brought for the specific performance of the following contract:
¶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:
¶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...
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