Davis v. Holman , 163 Okla. 59 ( 1933 )

On application for rehearing, we adhere to the rule announced in the original opinion herein to the effect that the "party to be charged" as used in section 5034, C. O. S. 1921 [O. S. 1931, sec. 9455] relating to contracts for sale of real property, means the party against whom the contract is sought to be enforced. However, we deem it proper to supplement our opinion with the following observations:

Defendant calls our attention to Schuerer v. Crockett,108 Okla. 218, 266 P. 30, wherein this court held in syllabus paragraph 1:

"Where the vendor, pursuant to a parol agreement to convey lands, executed a deed to the vendee and deposits the same in escrow to be delivered to the vendee upon the payment of the balance of the purchase price, and the recitals of such deed contain the terms of the parol agreement, including the consideration, it is a sufficient compliance with the statute of frauds."

And defendant urges that in the foregoing quotation this court adopts the rule that, under our statute, the "party to be charged" in the case of the sale of real estate is the vendor, and that if the vendor alone signs a deed or other memorandum sufficient to bind himself, the vendee is also bound thereby. Such is not the proper construction of our statute, nor is it the rule adopted in Schuerer v. Crockett, supra. In that case the party sought to be held to compliance with the contract was the vendee who was bound thereto by memorandum contained in letters written and signed by him, and the court so held. While the vendor was bound by the memorandum contained in the deed signed by him, and the court so held. It is true the rule in Schuerer v. Crockett, syllabus paragraph 1, is not completely nor correctly stated; it should limit the binding effect of the signing of the deed to the grantor who signed the deed, and as to him it is a sufficient compliance with the statute of frauds, but otherwise not. In so far as that case indicates that the signing of the deed by the vendor is sufficient to bind the vendee to comply with an oral agreement to buy real estate, the case is expressly overruled.

The defendant relies further upon Schuerer v. Crockett, supra, wherein the court in syllabus paragraph 3 announced the following rule:

"Under the fifth paragraph of section 5034, Comp. St. 1921, a memorandum signed by the party to be charged is sufficient, even if the same be a letter written after the breach of the contract, and contains a repudiation of such contract."

And defendant insists that our holding that the letter in this case is not a sufficient memorandum to hold the vendee here is contrary to the above quoted rule. In Schuerer v. Crockett, the memorandum by letter was sufficient, and was so held. That does not mean that every letter written by a vendee is a sufficient memorandum of a former oral agreement to comply with the statute of frauds. Such letter may, or may not, be sufficient, depending on the construction of it in each case. The rule in syllabus paragraph 3 of Schuerer v. Crockett must be strictly limited to cases wherein the memorandum as written in a letter and signed by the vendee may be seen to be sufficient as a memorandum of the oral agreement theretofore made, even though the letter be found to contain also an attempted repudiation of the oral agreement. In so far as that case adopts the rule that every repudiating letter written and signed by vendee is a sufficient memorandum to satisfy the statute of frauds, the same is expressly overruled.

The petition for rehearing is denied.

RILEY, C. J., CULLISON, V. C. J., and SWINDALL, ANDREWS, McNEILL, OSBORN, BAYLESS, and BUSBY, JJ., concur

Note. — See under (2) annotation in 28 L. R. A. (N. S.) 699; 43 L. R. A. (N. S.) 411; 25 R. C. L. 669, 671; R. C. L. Perm. Supp. P. 5599.