[18] It is agreed by the parties that a petition should be liberally construed in favor of the plaintiff. The rule is also applicable to cross-petitions.
[19] I believe the defendant below, Marvin Ellis, plead a cause of action against plaintiff below, G.O. Hollis, and that plaintiff's demurrer to defendant's cross-petition and counterclaim should have been overruled.
[20] In defendant's answer he alleged that he, the defendant Ellis, owned only the surface of a tract of land and authorized plaintiff, Hollis, to sell the surface of five acres of the land upon which the house and improvements were located for $7,200.00 cash, or cash of $1500.00 and a note for the remainder secured by a mortgage or vendor's lien upon the five acres. That plaintiff told defendant that Ella Mae Reece would purchase the property for $7,200.00; that $4,000.00 would be in cash when Ella Mae Reece sold her Oklahoma City property, and the remaining $3,200.00 to be paid by her note, secured by a mortgage upon the five acres.
[21] Defendant's answer further alleged that plaintiff, Hollis, prepared a contract of sale and caused defendant and Ella Mae Reece to sign the same; but that the contract wrongfully, improperly, and negligently contained other provisions and was indefinite, uncertain and ambiguous as shown by an attached copy.
[22] Defendant further alleged in his answer:
"That the defendant, Marvin Ellis, confronted Ella Mae Reece and the plaintiff, G.O. Hollis with the fact that the writing did not comply with the oral agreements and Ella Mae Reece cancelled and abrogated the written agreement and returned her copy of said agreement to the defendant; the plaintiff, G.O. Hollis then cancelled and abrogated the agreement and wrote `Void as G.O. Hollis' upon the face thereof." (emphasis supplied).
[23] The defendant then incorporated the foregoing allegations into his cross-petition and counterclaim and further alleged therein in pertinent part as follows:
"That G.O. Hollis, willfully, wrongfully, negligently and improperly *Page 836 drafted and attempted to cause the defendant, Marvin Ellis, to complete a contract upon indefinite, uncertain and damaging terms as shown by the document, a copy of which is attached and Marked `Exhibit A.' The five acre tract belonging to Marvin Ellis could have been sold to Ella Mae Reece for $7,200.00 had it not been for the wrongful, and negligent acts of the plaintiff, G.O. Hollis.
"That G.O. Hollis assumed the responsibility for drafting a contract and it was his duty and obligation to prepare it accurately, clearly, and in accord with the oral agreement and he breached his duty and obligation to Marvin Ellis in that he did not prepare an accurate, clear, or unambiguous contract and G.O. Hollis also breached his obligation to Marvin Ellis in misrepresenting to Marvin Ellis the contents and effect of the writing, and he further breached his duties to Marvin Ellis by attempting to force upon Ellis a writing in conflict with the oral agency agreement Marvin Ellis had given G.O. Hollis."
[24] Defendant further alleged that he has been unable to sell the five acre tract for $7,200.00 and that a sale of the property cannot be made for more than $5,200.00. He prayed judgment on his cross-petition for $2,000.00.
[25] The purchase contract which was attached to defendant's cross-petition is quoted as follows:
"UNIFORM PURCHASE CONTRACT"[26] When the foregoing cross-petition and counterclaim is liberally construed I am of the view that it alleges that the plaintiff, G.O. Hollis, had obtained a purchaser who accepted the property upon terms agreed upon by the defendant; and that if the plaintiff, real estate agent, had exercised care, skill, and diligence, in preparing the contract or in causing it to be so prepared, then the defendant would have had a valid contract for the sale of the land at $7,200.00 which could have been enforced."C50125 June 23rd, 1962.
"I, or we, the undersigned hereby agree to purchase the property hereinafter described, to-wit: HOUSE and 5 ACRES of land, Approx. 16 Mile East of Guthrey, Okla. 1 1/2 Mile North. Owner Marvin Ellis Including ELECT. Range and Elect. Water Heater and all Stoves (except ones belonging to Tenants, Wood K.S. subject, however, and on condition that the seller thereof has good and valid title, in fee simple, and agrees to furnish abstract to date of sale and convey said premises by Joint Tenancy warranty deed. On the following terms: The total price to be SEVEN-THOUSAND TWO-HUNDRED Dollars ($7,200.00) of which Equity in House 508 N Bath valued at Four-Thousand Dollars ($4,000.00) is to be paid in cash at the time of closing, the balance to be on the following terms, to-wit: the Balance to be a Mortgage in the Amount of THREE-THOUSAND TWO-HUNDRED DOLLARS ($3,200.00) with Some Loan Company if can be Arranged. It is Understood that Property 508 N. Bath is Valued at $5,500.00 with Present Balance not to Exceed $1,500.00
"The seller is to pay all Advalorem taxes to and including the year 1961, and special assessments, if any, to an including 1962. If this offer is accepted, I, or we, agree to close within 10 days after abstract is delivered. I, or we, agree to buy insurance now in force on a pro-rata basis. Rents and interest, if any, to be pro-rated on date of closing. Possession to be given on or before at Closeing or as Agreed on.
`I, or we, hereby hand G.O. Hollis Co. as agents the sum of $4,000.00 Equity 508 N. Bath Dollars ($4,000.00) to apply on the purchase price of the above described property, it being agreed and understood that in case of material legal defect in the title that cannot be cured, after filing with you written notice of such defect, the money deposited is to *Page 837 be returned to me, or us, but in event of my, or our, failure to complete the deal in accordance with terms set out above then the money so deposited is to be retained as part payment for services and rent for failure to consummate deal.
"This contract is to be binding on the heirs, administrators, executors and assigns of the parties hereto.
"This deposit and offer is taken subject to approval of owner within 5 days. Deposit to be returned if not accepted.
"__________________ Witness /s/ Ella Mae Reece Purchaser
"__________________ Witness /s/ Dorothy M. Henrichs Purchaser
"June 23rd, 1962.
"Received from Mrs. Reece the sum of $4,000.00 Equity 508 N. Bath Okla. City, Okla. Dollars ($4,000.00) to apply on the purchase price of said property in accordance with the foregoing terms.
"______________________________________
"By /s/ GG. O. Hollis G.O. Hollis
"______________________________________, 19__
"I, or we, owner of the above described property, accept the above offer, and agree to pay to __________________________________________ _____________________________________________________________________ a regular commission of __________________________ Dollars
"___________________ Witness /s/ Marvin Ellis Seller
"___________________ Witness _____________________ Seller"
[27] In Mattieligh v. Poe, 57 Wn.2d 203, 356 P.2d 328, 94 A.L.R.2d 464, it was held:
"If a realty broker fails to exercise reasonable care and skill, he is liable to his client for the damages resulting from such failure."
"A broker may be held liable for damages if a contract he attempted to prepare for his client fails because of the broker's ignorance, stupidity, incompetence, negligence or fraud." See also, 12 C.J.S. Brokers § 26.
[28] I find nothing in defendant's pleading which states that he, the defendant, abrogated his contract, or that he refused to sell upon the terms agreed upon. He alleged that "Ella Mae Reece cancelled and abrogated the written agreement"; and that "plaintiff, G.O. Hollis then cancelled and abrogated the agreement and wrote `Void as G.O. Hollis'".
[29] Defendant contends in his briefs that the written contract was so uncertain and ambiguous as to be unenforceable against the purchaser Ella Mae Reece. He invites attention to the fact he, defendant, did not own the minerals and that plaintiff prepared the contract without reserving the minerals; that the method of payment by the purchaser was indefinite and uncertain and did not specifically provide for cash, as agreed upon: that an oral contract or agreement *Page 838 to convey real estate cannot be enforced, 15 O.S. 1961 § 136[15-136](5), Merchants Southwest Transfer Storage Company v. Hartford Accident Indemnity Company, 146 Okla. 241,292 P. 60; and that the written contract, though incapable of enforcement and compliance therewith, did have the effect of superseding the oral agreement. 15 O.S. 1961 § 137[15-137].
[30] I believe when defendant's cross-petition and counterclaim is liberally construed it states a cause of action. I therefore respectfully dissent.