Nelson v. Golden , 84 Okla. 29 ( 1921 )

Plaintiff brings this action to cancel and set aside the written contract and to quiet title in her as to the 37.55 acres of land, alleging that a portion of the consideration had failed and defendant had made default and that plaintiff had elected to rescind a contract, and asked that the contract be canceled from record and declared null and void.

The defendant answered, setting up that the written contract was only a part and parcel of the original transaction, and that he had paid approximately $1,400 on the purchase price of the land in question, and there was still due $776,25, and tendered the same into court and prayed for specific performance, and prayed that plaintiff be required to execute a good and sufficient warranty deed to said land.

Upon the trial of the case the court dismissed plaintiff's petition and found the following facts: That defendant had paid on the purchase price of the land in question the sum of $1,398.75 and assumed $600 as part of the purchase price, and found that plaintiff had agreed to convey the property by good and sufficient warranty deed upon payment of the balance of the agreed price, to wit, the sum of $776.25, and that defendant had been ready and willing, and offered to pay the balance according to the terms of the contract, and that the defendant had at the expiration of 60 days offered to pay the balance of the purchase price, which plaintiff refused. The court decreed specific performance upon the defendant paying the sum of $776.25 within ten days, and that plaintiff be required to execute a deed to said land.

There are but two assignments of error. First, that the decision and judgment of the trial court are not sustained by the evidence and are contrary to law, and judgment should be for the plaintiff. The rule governing this assignment is announced in the case of Rush Springs v. Bentley, 75 Okla. 119,182 P. 664, as follows:

"In a case properly triable to the court without a jury, the court having made findings of fact, and said findings of fact not being clearly against the weight of the evidence, and the judgment of the court being based upon the findings of fact, the judgment of the trial court will not be disturbed on appeal."

Mrs. Nelson in her testimony admitted the negotiations were for the 90 acres, for a consideration of $75 per acre, and the deeds and contract were all made out at one and the same time and as part of the same transaction, and the payment of the sum of $2,000, which would more than pay for the 53 acres, was to be applied upon the payment of the other land within 60 days. Upon her own admission the finding of the trial court that there had been paid upon this tract of land the sum of $1,398.75 is not clearly against the weight of the evidence. The contract provides that there should also be assumed the sum of $600 on mortgage. This finding is undisputed. The parties agreed that the balance still due is the sum of $776.25, so this finding is not clearly against the weight of the evidence. So this leaves the other question of fact, and that is whether the defendant offered to pay the amount on or before 60 days. Mr. Nelson testified that he refused to make said payments, and defendant testified that he offered to make said payments or deposit the same in escrow until the title was perfected. This evidence is conflicting and we are unable to say the findings of the trial court upon any of these facts are clearly against the weight of the evidence. If the findings are true, then, as a matter of law, defendant was entitled to specific performance of the contract.

The second assignment of error is that the court erred in the admission of oral testimony, over the objection of the plaintiff, which changed or varied the express terms of the contract and which was not offered to prove fraud, accident, or mistake. We do not think there is any merit in this contention. Section 952, Rev. Laws 1910, provides:

"Several contracts relating to the same matters, between the same parties, and made as part of substantially one transaction, are to be taken together."

The court in the trial of the case permitted Mrs. Nelson to testify regarding the transaction, and she stated that the contract was for the sale of 90 acres of land at $75 per acre, therefore it was not error to admit in evidence the several contracts regarding the entire transaction. The written contract itself refers to the fact that in the deed to the other land the defendant had assumed a mortgage in the sum of $3.400. This evidence did not vary the terms of the contract, but disclosed what the real consideration was, which is admissible, and, as provided by statute, it was the duty of the court to consider the several contracts and determine from all the several contracts whether plaintiff was entitled to rescind the contract. A party claiming a rescission of a contract must restore or offer to restore everything of value which he has received under said contract from the other party. Moore v. Kelly, 57 Okla. 348, 157 P. 81.

There are no equities in this case in favor of the plaintiff, but all the equities are in favor of the defendant.

For the reasons stated, the judgment of the court is affirmed.

HARRISON, C. J., and PITCHFORD, ELTING, and KENNAMER, JJ., concur.