Sperling v. Marler

• Decision Date: 16 July 1998
• Docket Number: No. 88140,88140
• Citation: 1998 OK 81,963 P.2d 577
• Parties: Herbert P. SPERLING, Jr., Plaintiff/Appellant, v. Betty J. MARLER and William Delay, Defendants/Appellees.
• Court: Oklahoma Supreme Court

Page 577

963 P.2d 577

1998 OK 81

Herbert P. SPERLING, Jr., Plaintiff/Appellant, v. Betty J. MARLER and William Delay, Defendants/Appellees.

No. 88140.

Supreme Court of Oklahoma.

July 16, 1998.

Certiorari to the Court of Civil Appeals, Division 1. Appeal from the District Court of McClain County, Oklahoma. Honorable Noah Ewing, Judge.

¶0 Defendants were mineral brokers involved in a sale of mineral rights conveyed by Plaintiff. Summary judgment was granted in favor of Defendants because the trial court determined the requirements of the statute of frauds were not met. In addition, Plaintiff was unable to pursue his claim based upon an agency relationship between Defendants, because no written agency agreement existed. For purposes of summary judgment, we find the writings are sufficient with regard to the statute of frauds and a question of fact exists with regard to the alleged agency relationship which precludes summary judgment.

CERTIORARI PREVIOUSLY GRANTED, COURT OF CIVIL APPEALS OPINION VACATED. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

Michael W. Blevins, Sayre, for Plaintiff/Appellant.

Ralph A. Sallusti, Oklahoma City, Terry J. Garrett, Norman, for Defendants/Appellees.

SIMMS, Justice.

¶1 Herbert Sperling filed suit seeking payment for the sale of mineral interests he conveyed to Defendant, Betty Marler, through her alleged agent, Delay. The theory of defense, inter alia, was that the documents surrounding the transaction failed to meet the requirements of the statute of frauds. Both Plaintiff and Defendant Marler filed Motions for Summary Judgment and the trial court entered summary judgment in favor of both Defendants.

¶2 Sperling appealed and the Court of Civil Appeals affirmed the trial court. We grant certiorari, vacate the opinion of the Court of Civil Appeals and reverse and remand to the trial court, finding the documents are not so deficient as a matter of law to warrant summary judgment based upon the statute of frauds and a fact issue exists with regard to the alleged agency relationship between Defendants, Marler and Delay.

¶3 In reviewing a grant or denial of summary judgment, this Court will examine pleadings and evidentiary materials to determine what facts are material and whether there is substantial controversy as to one material fact. See Malson v. Palmer Broadcasting Group, 1997 OK 42, 936 P.2d 940; Wabaunsee v. Harris, 1980 OK 52, 610 P.2d 782. If substantial controversy as to a material fact exists, then summary judgment is improper. See Malson and Wabaunsee.

¶4 Defendants, Marler and Delay, were in the business of brokering mineral interests, putting sellers together with prospective buyers. In March 1994, Delay prepared a warranty deed for Sperling and executed a sight draft, which was drawn on Marler's account in the amount of $31,000.00. The warranty deed, dated April 4, 1994, conveyed twenty net mineral acres from Sperling to Marler. When the Grantor, Sperling, presented the draft for payment Marler refused to allow the bank to disburse the funds. Shortly thereafter, the warranty deed was returned to Sperling.

¶5 Plaintiff first argues that the statute of frauds is satisfied with the combination of documents which exist in the instant case. However, because Delay is the only defendant to have signed the sight draft which contains the reference to the purchase price, Plaintiff attempts to bind Marler by Delay's actions based upon an agency relationship between the two defendants. To bind a principal under 15 O.S.1991 § 136(5), the authority of the agent must be in writing, signed by the principal to be charged. In an effort to circumvent the writing requirement under the statute of frauds, Plaintiff relies on case law pertaining to joint ventures. Because each co-venturer acts as agent and principal for the other co-venturers within the scope of the joint enterprise, Plaintiff asserts that Delay was acting as Marler's agent by virtue of a joint venture, even though no written agency agreement existed. Martin v. Chapel, Wilkinson, Riggs & Abney, 1981 OK 134, 637 P.2d 81, 85.

¶6 We find that we are unable to say as a matter of law that the signed documents in this case fail to meet the requirements of the statute of frauds. This then poses a question of fact regarding an alleged joint venture relationship between Defendants, Marler and Delay. As a result of this material factual controversy, we find the grant of summary judgment was improper.

I. Does a Part Performance Exception to the Statute of Frauds Apply?

¶7 Because this cause concerns a contract for the sale of an interest in real property, the statute of frauds, 15 O.S.1991 § 136(5), applies. Unless the contract is outside the statute of frauds, the statute's requirements as to signature and contents must be satisfied with respect to each party to be charged. Partial performance of a contract can in some instances take a contract outside the statute of frauds.

¶8 Smith v. Lawson, 1956 OK 311, 307 P.2d 141, 144 holds, "the statute of frauds is inapplicable to a case where an oral contract has been completely performed except for the payment of the purchase price." Plaintiff contends that the only remaining portion of the contract to be completed was payment of the purchase price, in the form of honoring the sight draft. Smith specifically relies on the reasoning of MacThwaite Oil & Gas Co. v. Schulte, 123 Okla. 231, 253 P. 53 (1925). Both MacThwaite and Smith were situations in which the vendee accepted the conveyance and the only remaining performance was payment of the purchase price. MacThwaite, 253 P. at 55; Smith, 307 P.2d at 145. The MacThwaite court, illustrating the importance of the vendee's acceptance of the conveyance, stated:

We take it that defendants could have repudiated this contract, because of the statute of frauds, at any time before the acceptance by the defendants of this assignment.

MacThwaite, 253 P. at 55. Likewise, the Smith court noted defendant-buyer had undertaken certain steps which constituted her acceptance of the original assignment in addition to making partial payment and placing that payment in escrow. Unlike Smith and MacThwaite, this case had not only the payment of the purchase price remaining, but the purchaser's acceptance of the conveyance as well.

¶9 Cloud v. Winn, 1956 OK 267, 303 P.2d 305 also considered the issue of part performance in evaluating the validity of a partly written, partly oral contract for the sale of an interest in an oil and gas lease. The buyer delivered the assignment of the interest to a third party with directions to give the assignment to the buyer when payment was made. Id. These acts of performance were not enough to take the contract outside the statute of frauds. Id. at 312. Similarly, in McCaleb v. McKinley, 80 Okla. 38, 194 P. 105 (1920), the court acknowledged part performance can take a contract outside the statute of frauds, but said "preparation and delivery of the necessary deeds or abstract of title" was not sufficient. See also Harris v. Arthur, 36 Okla. 33, 127 P. 695, 695-96 (1912).

¶10 The part performance which was present here, namely the execution and delivery of the mineral deed, is not enough to circumvent the statute of frauds. See Id.; McCaleb v. McKinley, 194 P. at 106. As a result, the instant case is still within and subject to the statute's requirements.

II. Does the Agreement Fail to Meet the Statute's Requirements?

¶11 The statute of frauds posts written requirements for a host of contractual agreements, making it impossible to compel their enforcement under the law if a writing does not exist or is insufficient in detail. 15 O.S.1991 §§ 136(1)-(5).

¶12 With regard to satisfying the requirements of the statute of frauds, it is important to note this case is not devoid of written commemoration of the alleged agreement. The writings which exist are: (1) a mineral deed signed by Plaintiff conveying 20 net mineral acres from Sperling to Marler, dated April 4, 1994; (2) a sight draft prepared and signed by Delay to Sperling in the amount of $31,000.00, drafted on Marler's account, dated March 31, 1994, in which Plaintiff crossed out and initialed language relating to redraft privileges; (3) a memorandum agreement, signed by Sperling, Marler and Delay, expressing Sperling's intent to convey twenty net mineral acres, while reserving to Sperling two and one-half mineral acres, dated April 4, 1994.

¶13 Plaintiff asserts these documents are interrelated and can be considered together to satisfy the statute of frauds. Clay v. Reynolds, 169 Okla. 416, 37 P.2d 244, 246 (1934) (quoting 27 C.J. 259, at section 308) supports Plaintiff's assertion stating, " '[t]wo or more writings properly connected may be considered together, matters missing or uncertain in one may be supplied or rendered certain by the other, and their sufficiency will depend upon whether, taken together, they meet the requirements of the statute as to contents and signature.' " Plaintiff's assertion is further supported by Bowling v. Viets, 176 Okla. 107, 54 P.2d 653, 655 (1936), in which a combination of telegram wires was "sufficiently definite and complete to evidence such a meeting of the minds" and satisfy the statute of frauds.

¶14 There is evidence the memorandum agreement, the only document containing Marler's signature, was prepared after the sight draft and warranty deed. Marler contends its subsequent preparation prevents the memorandum from being considered part of the contract for purposes of the statute of frauds. Even if the memorandum agreement was prepared after the other two documents, the subsequent preparation does not remove it from consideration in evaluating the contract's validity.

The general rule is that the memorandum of the contract required by the statute of frauds may be made subsequently to the making of the contract itself and at any time before an action is brought on the contract ... and may be made at any...