Weller v. Dusky , 51 Okla. 77 ( 1915 )

The court below tried this case upon the theory that an oral contract for the sale of land, being within the statute of frauds, was illegal and void, yet, if the vendor was ready and willing to carry out his verbal contract, and deed the land in accordance therewith, he could not be compelled to refund money advanced thereunder, the same being part of the consideration, on the ground that, in the first instance, he could not be compelled to specifically perform the contract of sale. Obviously, this is true; otherwise the statute of frauds might be used as a sword, instead of a shield. The case of Schechinger v. Gault, 35 Okla. 416,130 P. 305, Ann. Cas. 1914D, 468, and cases therein cited, is in point, and fully sustains the doctrine announced.

The court below, however, after overruling a demurrer to the answer of the defendant basing his defense upon this verbal contract, gave the jury an instruction embodying the statute of frauds relative to verbal contracts as affecting the sale of real property. This instruction had no application to the case as submitted to the jury, and should not have been given; yet the instruction, being a simple statement of the law, with no direction to the jury to apply it to any fact in the case, was harmless, and, in our opinion, was not considered by the jury in arriving at their verdict. An instruction which states a correct proposition of law, but which has no application to the issues involved, will not warrant a reversal of the case, unless it is apparent that the erroneous instruction misled the jury.

Plaintiff in error complains that instructions Nos. 2 and 4 are inconsistent and contradictory regarding the burden of proof. With this contention we cannot agree. Instruction No. 2 requires the plaintiff to establish the allegations in his reply by a preponderance of the evidence; that is, that the defendant was to furnish plaintiff sufficient work out of contracts then on hand to enable plaintiff to complete the purchase price of the lot. Instruction No. 4 requires the defendant to establish by the evidence that he offered plaintiff, at the time, sufficient work to enable plaintiff to complete the purchase price, and that the plaintiff refused to perform. Both instructions are fairly in harmony with the pleadings of both parties and the facts adduced at the trial. Plaintiff claims he was to be provided with work out of contracts the defendant then had on hand. That this was the understanding of defendant is emphasized by him in his own testimony at page 26 of the case-made:

"I told him that I had quite a lot of work on hand, and that I would like him to take the lot, and he could pay for it in work."

The answer of the defendant is silent as to when the plaintiff was to do the work, but the testimony of the defendant fairly covers this hiatus. Therefore we hold that the instructions complained of stated the law of the case, and their inconsistency, as applied to the facts and the original understanding of the parties, is more imaginary than real. Were this not so, the giving of the instruction was not error, under the ruling of this court in First National Bank of Tishomingov. Ingle, 37 Okla. 276, 132 P. 895, which held:

"Instructions should be construed together as a whole, including special charges given at the request of either party. When so construed, if they properly state the law, they will not be subject to exception, although some numbered instructions, or portions thereof, standing alone, may be misleading."

Finally, the contract for the sale of the lot and the mode of payment were submitted to the jury, and they found from the evidence that the defendant had failed to comply with his part of the contract and plaintiff was without fault. We believe from the facts that plaintiff was entitled to recover, and the jury so found.

We therefore recommend that the judgment be affirmed.

By the Court: It is so ordered.