Smith v. Rockett
| Decision Date | 04 May 1920 |
| Docket Number | 10649. |
| Citation | 192 P. 691,79 Okla. 244,1920 OK 199 |
| Parties | SMITH v. ROCKETT ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Oct. 12, 1920.
Syllabus by the Court.
The test applied to a demurrer to the evidence is that all the facts which the evidence in the slightest degree tends to prove, and all inferences or conclusions which may be reasonably and logically drawn from the evidence, are admitted. The court cannot weigh conflicting evidence, but must treat the evidence as withdrawn which is most favorable to the demurrant.
A motion to direct a verdict admits all the facts and inferences to be drawn therefrom in favor of the party agaitnst whom the motion is directed, and leaves for consideration only such evidence as is favorable to the party against whom such motion is directed.
An executory contract for the sale of the minors' real property, executed by the guardian to a third person, is not binding upon the wards, and conveys no title nor interest in the property. The only way and manner that a guardian can sell the real estate of his ward is by proper proceedings in a court of competent jurisdiction.
A contract, illegal in part and legal as to the residue, is void as to all, when the two parts cannot be separated; when they can be, the good will stand and the rest fall.
The permitting of an amendment to a pleading at any stage of the trial to conform to the proof is within the sound discretion of the trial court, and, in the absence of a showing of an abuse of such discretion, the action of the court will not be disturbed.
Additional Syllabus by Editorial Staff.
An assignment of error, not briefed by plaintiff in error, will be deemed to have been abandoned.
Appeal from District Court, Carter County; Thos. W. Champion, Judge.
Action to quiet title by Ida M. Rockett in behalf of herself and as guardian for her three minor children, against W. L. Smith. Judgment for plaintiffs, and defendant appeals. Affirmed.
Sigler & Jackson, of Ardmore, for plaintiff in error.
Chas H. Hudson, of Wilburton, and Moore & West, of Ardmore, for defendants in error.
This action was commenced in the district court of Carter county by Ida M. Rockett on behalf of herself and as guardian for her three minor children, and for possession of some 4,500 acres of land, and to quiet title in the plaintiffs. The petition alleged that the plaintiffs are the owners of said land, and on the 13th day of August, 1917, a contract for sale of said land was executed by Ida M. Rockett for herself and as administrator of estate of Louis H. Rockett, and as guardian for the three minor children, to R. R. McLish and Luther Eoff, which contract was assigned to defendant Smith that thereafter plaintiff Ida M. Rockett and Louis Rockett entered into an additional contract on the 10th day of April, 1918, with W. L. Smith, agreeing to convey all of the lands of Ida M. Rockett, and the minors to said Smith, but said contract was obtained by fraud, in that the contract provided for the payment of $2,000 at the time of signing said contract; that said contract had been executed and Smith had obtained possession of said land, under said contract, but had never paid said $2,000, nor any portion of the contract price. Plaintiffs asked for judgment canceling the contracts and damages for the withholding of said lands in the sum of $5,000, and an additional $5,000 for injury and damages to the free hold. To this petition the defendant filed his answer and cross-petition, claiming certain rights by virtue of the contract with McLish and Luther Eoff, and the contract to himself, and denied he had breached his portion of the contract, and further pleaded that he had delivered a check to the plaintiffs in payment of said contract, but there was an agreement that the same should not be cashed for the reason that a portion of the property was in the hands of Alva E. Smith, who was in bankruptcy, and that said check was not to be paid until defendants were given possession of said land; that although plaintiff had attempted to cash said check it was contrary to their agreement. Defendant pleads that he is ready to carry out the contract, but the plaintiff has broken their portion of the contract, and failed and refused to have the land belonging to the minors sold through the probate court.
Defendant further pleaded that Ida M. Rockett and Louis Rockett were the owners of 2,500 acres of said land, and 1,800 acres were owned by the minors. Defendant states that he is ready to pay into court the money under said contract, and to comply with the contract upon plaintiffs tendering into court a good and sufficient abstract and deed, or at least their portion of the land, and alleged that since the making of the contract the lands advanced in value, and by reason of said fact and the breach of the contract the defendant has been damaged in the sum of $23,000. The case was tried to the jury, and the jury returned a verdict in favor of the plaintiff for possession of the land, awarding the plaintiff $900 for damages for the rent of the property. The court approved the verdict of the jury, and rendered judgment for possession of the land and found that the plaintiffs were the owners of said land, and found what portion of the land belonged to each one of the plaintiffs, and made a further finding that the terms of the contract, dated April, 1918, entered into between the plaintiffs and the defendant Smith, had been violated, and the $2,000 provided for in said contract was never paid, or no valid or legal tender had ever been made, and that Smith had breached the terms of the contract, and lost whatever right he had under and by virtue of the same, and on account of the breach said contract has terminated, and should be declared null and void.
The court further found that under the terms of the contract it was agreed that on a failure to pay the money provided in the contract Smith should pay rental in the sum of 75 cents per acre per annum as rental. The court found under said contract there was $900 due for the use and occupancy of the premises. The court then quieted title in the plaintiff, and decreed that the defendant had no interest in the premises. From said judgment the defendant has appealed to this court.
For reversal the plaintiff in error has divided his assignments of error in eight separate and distinct assignments. We will consider them in the order set forth in the printed brief. The first assignment of error is as follows:
"That the court erred in sustaining the objection of the plaintiff to certain evidence offered by the defendantplaintif, and especially that evidence in which the defendant sought to prove that the McLish and Eoff contract, referred to in the record and the Falkner lease, were a part of the consideration for the contract made between Ida M. Rockett and Louis H. Rockett."
This assignment of error is not briefed by plaintiff in error, and it will therefore be deemed that plaintiff in error has abandoned the same. However, the contract with Mr. Smith provided that, upon the signing of said contract between plaintiffs and Smith, the contract that plaintiffs had with Falkner Bros. and with McLish and Eoff should be void, and that Smith should have no further interest in said land; by reason of said contracts, we are unable to see how the question presented could be material in the case at bar.
The second assignment of error is that the court erred in overruling the defendant's demurrer at the close of plaintiff's testimony. In this we do not think the court erred in overruling said demurrer. The plaintiff produced testimony as to the execution of the contract, and the failure on behalf of the defendant to comply with any portion of said contract, and his failure to pay the $2,000 mentioned in said contract, which was due upon the signing of said contract. The record further disclosed that prior to the time of the signing of said contract the defendant had given to plaintiff a check in the sum of $2,000, which said...
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