209 P. 727 | Idaho | 1922
This action was commenced to recover , the sum of $800 on an alleged oral contract, arising out of the sale of certain land in Twin Falls county.
Respondent alleges in his complaint that he purchased from Mrs. Foren a tract of land in the county of Twin Falls, through her agent, one Smith; that before closing the contract of purchase he met appellant and agreed not to close the contract, but to allow appellant to be substituted in his place and become the purchaser, appellant to pay him the sum of $800; that after making this arrangement orally with appellant, in the presence of the owner of the land, Mrs. Foren, appellant and respondent met and mutually agreed that the appellant should become the purchaser of the land from Mrs. Foren and make payments in the amounts
From the record it appears that Mrs. Foren was a woman about eighty years of age; that appellant is a man past eighty-one years of age; that a real estate agent named Smith received verbal instructions from one or more of the sons of Mrs. Foren to make a sale of her land. No written instructions to make the sale were given to Smith. Smith testified, however, that he first sold the land to respondent’s brother, who made a deposit of $25; that this sale fell through; that he thereafter made a sale of the land to the respondent, who also put up a check for $25; that he thereafter took the appellant out and showed him the land, claiming to act as the agent of respondent. Respondent testified that he thereafter met the appellant and priced the land to him at $165 an acre, but they afterwards agreed that appellant should purchase the land for $155 an acre. The price placed upon the land by Mrs. Foren through her sons was $135 an acre, and it was at this price that Smith testified that he sold the land to the respondent. Subsequently appellant, respondent, Mrs. Foren, her two sons, and Smith met in the latter’s office, and a contract of sale of the land from Mrs. Foren to appellant was drafted and signed, appellant putting up a check for $1000, according to the terms of the contract, and agreeing in the contract to make the balance of the payments as therein stipulated. This contract together with the cheek was deposited in escrow, in order to afford sufficient time for the appellant to examine the abstract. When appellant first agreed to purchase the land he deposited a check for $50, payable to Smith, as evidence of his good intention to carry out his contract, but shortly after making the payment of $1,000, and signing the contract, he demanded and received back from Smith the $50 check, which he destroyed.
It is respondent’s contention that appellant owes him the difference between $135 an acre, the amount he was to pay
“No estate or interest in real property, other than for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.”
It is the contention of the respondent that he is not seeking to enforce an agreement to purchase or sell any interest in real estate and that therefore the objection made by appellant to the introduction of any testimony on the ground that the admission of such testimony comes within the prohibition of the statute of frauds is not well taken, but insists that this is a plain suit for a money judgment based on an agreement between the parties hereto, which agreement was completely fulfilled by respondent in that he procured for the appellant that which the appellant was seeking, and having done this, he is entitled to the sum appellant agreed to pay him therefor.
We are not in accord with this contention. Respondent did not go into possession of the Foren land. All that was done by him was to turn over to Smith, his associate in the real estate business, a cheek for $25, which he claims was a payment on the purchase price of the Foren land. There
Respondent sought to sell by word of mouth his alleged interest claimed by him in the Foren land. This he clearly could not do.
From what has been said it follows that the court erred in overruling objections to the admission of any evidence on behalf of respondent for the purpose of showing an oral agreement between appellant and respondent. The instructions given by the court at the request of respondent and exeepted to by the appellant involving the same questions disposed of herein, were erroneous. The judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed. Costs awarded to appellant.
