Speed v. McMurray
| Decision Date | 20 August 1918 |
| Docket Number | 8964. |
| Citation | 176 P. 506,73 Okla. 325,1918 OK 481 |
| Parties | SPEED v. McMURRAY et al. |
| Court | Oklahoma Supreme Court |
On Rehearing, November 26, 1918.
Syllabus by the Court.
Where plaintiffs and defendants agree on an exchange of plaintiffs' farm for certain town lots which the parties examined, and the agreement was that the farm should be exchanged for specific lots examined by the parties, but by a mistake the deed was made for lots in another block of less value than those agreed on, and the farm was subsequently transferred to an innocent purchaser for value, without notice, held, in an action to rescind the contract on the ground of fraud, that the plaintiffs might recover as damages the difference between the value of the lots agreed and those actually conveyed.
The facts of this case have been examined, and are held to have no application to the doctrine of election of remedies.
On Rehearing.
Interest cannot be recovered upon unliquidated damages, where it is necessary for a verdict to be had in order to ascertain the amount of the same.
Commissioners' Opinion, Division No. 2.
Error from District Court, Beckham County; T. F. Clay, Judge.
Action by J. W. McMurray and J. R. McMurray against H. K. Speed. Judgment for plaintiffs, and defendant brings error. Remanded with direction to modify judgment.
E. H Gipson, and T. Reginald Wise, both of Sayre, for plaintiff in error.
McAdams & Haskell, of Oklahoma City, for defendants in error.
This action was instituted in the district court of Beckham county, Okl., by the defendants in error, hereinafter referred to as plaintiffs, against the plaintiff in error hereinafter referred to as defendant. The transaction out of which this suit arose is as follows: The plaintiffs and defendant were residents of Beckham county, Okl. The plaintiffs were the owners of a farm located in Beckham county, Okl., said farm consisting of 160 acres of land, and the defendant was the owner of lots 39 to 44, inclusive, in block 1, Alta Vista addition to Oklahoma City. On or about January 21, 1909, there were negotiations started between plaintiffs and defendant for an exchange of this property. In furtherance of these negotiations the plaintiffs and defendant came to Oklahoma City to inspect the lots owned by the defendant. When they arrived in Oklahoma City they went to where the lots were supposed to be located. It seems that neither the plaintiffs nor defendant were familiar with the exact location of the lots in question, and when they went to view said lots, instead of inspecting the lots owned by defendant, they were shown lots that were located in block 2 in Alta Vista addition to Oklahoma City. The terms of exchange of said property were agreed upon, and deeds executed by the plaintiffs to the defendant for the land located in Beckham county, Okl., and the defendant executed a deed to the lots located in Oklahoma City. About 60 days after the transaction was consummated it was discovered that an error had been made by the parties to said transaction and that the plaintiffs did not receive the lots that were shown them in Oklahoma City. It appears that the mistake was mutual, the lots that were actually deeded to plaintiffs had practically no value by reason of the fact that they were located in a ravine, and the amount of money that it would require to fill and level said lots would be more than the value of the lots after said expenditure. When this mistake was discovered, this action was instituted to rescind the contract and to cancel the deed executed by plaintiffs to the defendant to the farm in Beckham county. A deed to the lots was properly executed by plaintiffs and tendered to the defendant.
It was disclosed at the trial of the case that the defendant had deeded the farm in Beckham county to an innocent purchaser, and that the court did not have authority to grant the relief prayed for. At the conclusion of the evidence the plaintiffs requested to be permitted to file an amendment to their petition, so that the petition might conform to the facts as shown by the evidence. For some reason this amended petition was not filed. At one time the consent of the court was given to file said amendment, and later this consent was withdrawn, and the plaintiffs were denied the right to file said amendment. The case was first tried to the court, and the court found in favor of the defendant and against the plaintiffs. From that judgment and decree the plaintiffs appealed to the Supreme Court of this state, where the judgment and decree of the lower court was reversed, and the cause remanded to the district court of Beckham county for further proceedings. The case is reported in 153 P. 181. The case was accordingly tried in the district court of Beckham county, Okl., on the amended petition and the amendment to the amended petition. The case was submitted to a jury, and a verdict returned in favor of the plaintiffs for the sum of $700, with 6 per cent. interest from January 21, 1909. A motion for a new trial was filed and overruled, from which action the defendant prosecuted this appeal.
There is but one question that is material to a consideration in this case, and that is as to whether or not the instruction of the court as to the measure of damage is correct. The trial judge instructed the jury that the measure of damages in said action was the difference between the value of the lots agreed on and those that were actually conveyed. This instruction is based upon the syllabus in the case of Murray v. Speed, supra. It is urged in this case that the instruction is an erroneous statement of the law as to the measure of damage applicable in this case. It is contended by the plaintiffs that the law as stated in the syllabus on the former appeal was the law of the case at the second trial in the district court of Beckham county, Okl., and that it was immaterial as to whether or not it is a correct or erroneous statement of the law applicable to the measure of damage, for the reason that the rule announced by Commissioner Devereux on the appeal was binding on the trial court at the second trial. An examination of the opinion as written by Commissioner Devereux discloses that the measure of damage that should be applied in this case was not discussed in the opinion, but that in writing the syllabus the measure of damage that should be applied is there stated. The defendant has earnestly argued that the rule announced in the syllabus is not the law of the case, for the reason that it is not supported by any finding in the body of the opinion.
It is not necessary to determine this question, for the reason that we have reached the conclusion, after a careful consideration, that the rule as stated in the syllabus of the case is a correct statement of the law as to the measure of damage that should be applied in this case. It was determined by the court in the former appeal that this is a case of equitable cognizance, and that, the court having obtained jurisdiction for the purpose of administering relief, equity retained jurisdiction for all purposes, even though it should be required to determine purely legal rights, that are otherwise beyond its authority. When the evidence disclosed that the farm formerly owned by plaintiffs in Beckham county Okl., had been deeded by the defendant to an innocent purchaser, it was then apparent that the court was without authority to administer the exact relief sought by the plaintiffs, and it then devolved upon the court to render a money judgment as prayed for in the original petition, and in the amended petition and amendment to the amended petition. When it developed that the farm formerly owned by the plaintiff had been placed beyond the jurisdiction of ...
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