Halsell v. Renfrow , 14 Okla. 674 ( 1904 )

Opinion of the court by

Burford, C. J.:

Two questions are presented for our . consideration: First, Do the telegrams, letters and other writings in évidence constitute such note or memorandum of an agreement to sell real estate as will satisfy the statute of frauds, of which a court will decree a specific performance? Second, Does the evidence show such a part performance of a parol contract' for the sale of real estate as will authorize a court to decree specific performance ?

While the arguments of counsel for plaintiffs in error are able, ingenious, skilled, and deserving of compliment, in our opinion the case does not present a problem of difficult solution. We have examined all the authorties cited by counsel in support of their several contentions, and concur in the propositions contained in these cases, but the facts proven do not in onr judgment support the conclusions upon which these contentions are based. It cannot under the facts proven, be reasonably contended that Shields, as Renfrows ■agent, had any authority to sell this land. Renfrow had placed this land with him for sale; this was an oral direction. No writing of any character had passed between Renfrow and Shields. This direction only authorized him to find a purchaser, and submit the propositions. An agreement for the sale of real property made b3 an agent is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged, see. 780; Wilson’s Statutes.

It is a well established proposition of general application, that a complete contract binding under the statute of frauds may 'be gathered from, letters, writings and telegrams 'between the parties, relating to the subject-matter of the contract, and so connected with each other that they may be fairly said to constitute one paper relating to the contract. (Beckwith v. Talbot, 95 U. S. 289 Ryan v. U. S., 136 U. S. 68; Bibb v. Allen, 149 U. S. 481.) But the facts proven do not come within the rule. In order to be sufficient, the letters, telegrams, and writings relied upon must, by reference to each other, disclose every material part of a valid contract, and must be signed by the party sought to be charged. They must set out the parties, the subject-matter, the price, the description, terms and conditions, and leave nothing to rest in parol. (Fox v. Easter, 10 Okla. 527; Gould v. Stormant, 51 Mich. 636; Eggleston v. Waggoner, 46 Mich. 610; Ferguson v. Blackwell, 8 Okla. 489.)

It is a general rule that parol evidence cannot be permitted to supply an omission of any essential element of the contract. In Ferguson v. Blackwell et ux., 8 Okla. 489, this court held: That “Where a sufficient description is given in the contract, parol evidence may be resorted to in order to fit the description to the thing, but where an insufficient description is given or where there is no description, such evidence is inadmissible because the court will never receive parol evidence both to describe the land, and then to apply the description.” And we adhere .to this doctrine as the safe and sound rule. In explanation, but not as a modification of this rule, it is said in Ryan v. U. S., 136 U. S. 68; “It is not essential that the description have such particulars and tokens of identification as to render a resort to extrinsic aid entirely needless, when the writing comes to be applied to the subject-matter. The terms may be abstract and of a general nature, but they must be sufficient to fix and comprehend the property which is the subject of the transaction, so that with the assistance of external evidence, the description without being contradicted or added to, can be connected with and applied to the very property intended, and to the exclusion of all other property.”

Applying these tests, it is clear that there was no such written memoranda as the law recognizes as sufficient to supply the place of a written agreement. The first writing of any character appearing in the case is a check from Land, one of the plaintiffs, to Shields for five hundred dollars. There is no means of identifying this check, or its purposes, except' by parol evidence. It does not disclose anything that will supply any element of an agreement to sell the real estate in question. The next writing is the telegram from Shields to Eenfrow, which states that he has “sold the fifty acres., ten' thousand cash,, five hundred forfeit." This telegram is from the agent to his principal, it is not a communication 'between the parties to the transaction. Shields was not the agent of the plaintiff, nor acting for them, he was agent for Kenfrow, and communications between the agent $nd his principal do not ordinarily constitute a part of the agreement itself, but are explanatory of what has been done between the agent and the other party. But in this telegram, Shields says he has sold-the property, 'and as heretofore held, he had no authority to sell, and any sale he made cannot be enforced. The next writing is the telegram from Kenfrow to Shields: “I confirm sale by you ten thousand cash, five hundred forfeit." So far no vendees have been mentioned and no description of the property given. In order to supply these, it is the theory of counsel for plaintiffs in error that the deed executed by Kenfrow and wife, and submitted by Kenfrow to the plaintiffs at the time of the conference in Oklahoma City, contained the names of tire vendees and tire description of the land, and, although not delivered, • that it is a writing that may be looked to to supply the description and vendees. While there are a very few cases holding that an undelivered deed may be looked to to supply a description, they axe cases where there had been an exchange of lands, and one or both parties had taken possession. (Parrill v. McKinley, 58 Am. Dec. 1; Leonard v. Woodruff, 65 Pac. 199.) But the general rule is that an undelivered deed forms no part of the transaction, and cannot be looked to to supply any omissions in the writings that have passed. (Steele v. Fife, 48 Iowa, 99; Grant v. Leran, 4 Penn. St. 393; Weir v. Batdorf, 38 N. M. 22; Day v. LaCasse, 27 Atl. [Me.] 124; Parker v. Parker, 67 Mass. 409; Comer v. Baldwin, 16 Minn. 172; Johnson v. Brook, 66 Am. Dec. 547; Allebach v. Godshalk, 116 Pa. St.) But in view of the particular facts in this case we do not deem it important whether this deed could or could not aid the agreement. It is a conceded fact that the description in this deed was not a correct one, and both parties repudiated it. It embraced the 'Compton lot which Eenfrow did not own, and he refused to deliver the deed with this lot embraced in the description, and it was orally agreed that a new deed should be drawn up, excluding the Compton lot from the description. The further contention is made that the deed sent to the bank by Eenfrow contained a correct description, and that it can be looked to to supply the description. If this could be permitted under the authorities cited, supra, it would not yet entitle the plaintiffs to recover in this action. If the writings alone are to be held as a sufficient 'memoranda to taire the agreement out of the statute of frauds, and we do not think they do, then it would appear from such agreement that the consideration to be paid was ten thousand dollars, and the plaintiffs never tendered or offered to pay but. $9,800.00. It is true that it is claimed that Eenfrow agreed to deduct $200.00 on account off the Compton lot being deducted from the land, but this was a parol agreement, and “A contract in writing may be altered by a contract in writing, or by an executed oral agreement and not otherwise.” Sec. 829, Wilson’s Stat. 1903, Swain v. Seamens, 76 U. S. 254. This alteration was not in writing, neither was it executed, for at that time nothing in the nature of a consideration had passed between the parties, except the five hundred dollars paid to Shields, and this had not yet been, accepted by Renfrow and was beld subject to the fin'al determination of the negotiations.

The subsequent letters of Renfrow to Halsell, and of Halsell 'to Renfrow, and of Renfrow to Stone and Lee, contain nothing that can be construed as any part of an agreement. The]' are competent evidence as containing admissions- of one of the parties to the negotiations and go no further than this.

,We- deem it clear that no such written memoranda or notes passed between Renfrow and the plaintiffs as can, by the most liberal application of the well established rules of law, be construed into a written contract. There is not an instrument, letter, memorandum or telegram signed by any of the plaintiffs and sent to Renfrow that has any reference whatever to the terms or provisions of an agreement, until the letter of Halsell declining the deed unless Renfrow would give possession at once and deduct two hundred dollars from the price as offered Shields.

The second proposition is, Was there a parol agreement entered into between the parties, or part parol and part written, certain of enforcement in its terms, and which has been in such part performed as' will warrant a court in requiring specific performance of the remaining portion ? Upon this question the 'burden of proof was upon the plaintiffs to show an oral agreement, and such part performance as would make it fraudulent and inequitable to allow the defendant to malee use of the statute of frauds as a defense. The evidence fails to establish a contract; upon the contrary it is clearly apparent that the question of delivering possession of the tract was one that the minds of the parties never did meet upon. The tenant, Springstine, was in actual possession. He demanded five hundred dollars for his interest. Eenfrow refused to pay him anything, and offered his deed and such possession as he could deliver, subject to any rights tfye tenant then had, and offered to pay the expenses of waging a suit to oust the tenant. The plaintiffs refused to take the property except upon the condition of immediate possession, and demanded that Eenfrow should purchase whatever interest Springstine had under his lease, and give them undisputed possession. Spring-stine and his attorney were brought into the conference and an effort made to secure an agreement to settle his rights by arbitration. This effort failed and the tenant persisted in his demands for five hundred dollars or he would retain possession as against every one until his lease should expire in December, 1901. The parties separated and went to their several homes without ever reaching an agreement. Eenfrow then sent the deed to the 'bank and tendered the same, upon the conditions in his letter to Halsell. The plaintiffs declined his terms and tendered the money less the deduction for the Compton lot, only upon condition of immediate possession, which they knew Eenfrow could not give unless he acceded to the demands of Springstine, which he had previously informed them he would not do. There was no parol agreement ever reached by the parties. The writings do not constitute a contract in writing, nor do the oral negotiations an'd partial writings constitute a parol agreement. It therefore follows, if there was no agreement to sell and convey, there could be no part performance which would avail the plaintiffs. Part performance of an agreement presupposes an agreement certain in its essential parts. But should we concede that the parties did enter into a parol agreement which, but for the statute of frauds might be enforced, we are of the opinion that the evidence does not show such partial performance on the part of the plaintiffs as will require a court of equity to enforce specific performance. It is true the plaintiffs paid Shields five hundred dollars with the purpose that it should be applied as a payment to Eenfrow upon the purchase price of the land, but the mere payment of the consideration in money is insufficient to remove thé bar of the statute. But payment of the purchase money accompanied by an entry into possession in good faith under the contract, with the consent of the vendor and making valuable improvements on the land, is such a part performance as will support' an action for specific performance. Townsend, v. Vanderwerker, 160 U. S. 171; Neale v. Neales, & Wall. 1; Brown v. Sutton, 129 U. S. 238.

Mr. Justice Brown in the case of Townsend v. Vanderwerker, sufra, stated the rule thus: “The general principle to be extracted from the authorities is that if the plaintiff, with the larowledge and consent of the promisor, does acts pursuant to and in obvious reliance upon a verbal agreement, which so change the relations of the parties as to render a restoration of their former condition impracticable, it -is a virtual fraud upon the part of the promisor to set up the statute in defense, and thus to receive himself the benefit of the acts done by the plaintiff, while the latter is left to the chance of a suit at law for the reimbursement of his outlays, or to an action upon a quantum meruit for the value of his services. In discussing what are and what are not acts done in part performance, which will entitle the plaintiff t'o a decree in his favor, the entry into possession of the laud and the malring of valuable improvements thereon is treated by all the eases as one of the most satisfactory evidences of part performance, and entitling the plaintiff to a decree in his favor. "And this principle is exemplified in the following cases: Union Pacific Railway Company v. McAlpine, 129 U. S. 305; Ryan v. Dix, 34 N. Y. 307; Loury v. Ton, 3 Barb. Chan. 407; Overstreet v. Rice, 96 Am. Dec. 279.

It is the general rule that the taking possession under .a parol contract and making valuable improvements on the land will constitute such part' performance as will enable the vendee to enforce specific performance, but it is also well settled that such acts of possession and the purpose of them must have been known to the vendor.

We do not think the manner and time of taking possession by the plaintiffs in this case, and the character of the work done on the land was done with the consent of Mr. Eenfrow. It is true that Shields may have given them permission to make a' survey and plat the land, but there is no proof that Shields had any authority over the land, and there is no presumption that a real estate broker having lands listed for sale, has any control over the lands, or the right to make a contract of sale. His authority to sell must be in writing, and one dealing with him must demand the written authority or deal at his own risk.

The plaintiffs rely upon the provisions of section 760 Wilson’s Stat. 1903, which reads thus: “A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it so far as the facts are known, or ought to be known to the person accepting." And it is argued that inasmuch as Shields ae-cepted the check for five hundred dollars and collected the money thereon, that such act constitutes a voluntary acceptance of the benefits of a transaction that carries with it Renfrows consent to all the obligations arising from its accéptance. This rule limits the imposed consent to the facts known at the time or such as ought to be to the person accepting. The check was given t'o Shields as a payment upon an agreement to sell made by him without authority, and which could not be enforced and which was in fact never fully ratified by either the plaintiffs or defendants. Shields was not the agent of Benfrow to collect' the purchase money or make a conveyance; his authority to find a purchaser carried with it no implied authority to collect the ' purchase money when the land was sold. The plaintiffs by giving a check payable to Shields personally made him their agent' to deliver the money to Benfrow, and Benfrow never has received or accepted the money. If the check; had been made payable to Benfrow, and he had endorsed it and collected the proceeds, a different rule would apply. We cannot hold under all the circumstances that Benfrow has ever in fact or in contemplation of law accepted anything from the plaintiffs, and hence he is not concluded from asserting his defense.

It seems clear that there was no error committed by the trial court, and that the judgment is clearly right upon the facts and the law. The judgment' of the district court of Oklahoma county is affirmed at the costs of the plaintiffs in error.

Irwin, J., who presided in the court below, and Burwell, J., not sitting; all the other Justices concurring.