1. PLEADING — Objection — Demurrer — Introduction of Evidence. The proper practice to challenge the sufficiency of a petition is by demurrer; and where it is challenged solely by an objection to the introduction of any evidence thereunder, such objection, not being favored by the court, should generally be overruled, unless there is a total failure to allege some matter essential to the relief sought.
2. APPEAL AND ERROR — Trial — Interrogatories — Equity Case. Where a jury is impaneled in a case of purely equitable cognizance, to aid the court in determining the facts, it is entirely within the discretion of the court as to what interrogatories the court propounds to the jury; and error cannot properly be assigned that the court erred in propounding such interrogatories, or that the interrogatories propounded were not germane to the issue involved.
3. SAME — Instructions — Equity Case. Where a jury is impaneled in a case of purely equitable cognizance, to aid the court in finding the facts, the findings of the jury being merely advisory, the giving or refusal to give certain instructions, regardless of whether or not such instructions given or refused correctly state the law, cannot properly be assigned as error.
4. CONTRACTS — Consideration — Sufficiency. It may be laid down as a general rule that there is sufficient consideration for a promise made in writing, if there is any benefit to the promiser, or any loss or detriment to the promisee. It is not necessary that a benefit should accrue to the person making the promise.
5. SAME — Want of Consideration — Burden of Proof. Where the execution of a written instrument is admitted, but want of consideration therefor pleaded, the burden is upon the party executing the instrument to prove by a preponderance of the evidence the want of consideration.
6. SPECIFIC PERFORMANCE — Contract to Convey Land — Damages. Where it appears from the evidence, in an action for specific performance of a contract to convey land, that the consideration has been fully paid, and that defendant is not in a position to specifically perform the contract, by reason of not having clear title to the land contracted to be conveyed, the court may legally award plaintiff damages, measured by the value of the land at the time it should have been conveyed, with legal interest thereon from said time.
7. SAME — Sufficiency of Evidence. Upon consideration of the whole record and a careful reading of the evidence, we find the judgment of the court is sustained by the weight of the evidence.
8. EQUITY — Scope of Relief — Multiplicity of Suits. This being a case purely of equitable cognizance, the court, having obtained jurisdiction of the controversy, will administer complete relief, in order to avoid a multiplicity of suits.
(Syllabus by Collier, C.)
Opinion by COLLIER, C. (after stating the facts as above).
This is an equity case, and therefore the fifth, sixth, and seventh assignments of error are without force. In the case of Success Realty Co. v. Trowbridge, ante, p. 402, 150 P. 898, this court held:
"Where a jury is impaneled in a case purely of equitable cognizance to aid the court in determining the facts, it is entirely within the discretion of the court as to what interrogatories the court propounds to such jury; and error cannot properly be assigned that the court erred in propounding such interrogatories, or that the interrogatories propounded were not germane to the issues involved.
"Where a jury is impaneled in a case purely of equitable cognizance to aid the court in finding the facts, the finding of the jury being merely advisory, the giving or refusal to give certain instructions, regardless of whether or not such instructions given or refused correctly state the law, cannot, on appeal to this court, properly be assigned as errors."
The first, second, third, and fourth assignments of error will be considered together.
The petition does not show a total failure to allege some matter essential to the relief sought, and hence the court did not err in admitting evidence under the petition, and in overruling the motion for judgment on the pleadings. The proper practice to challenge the sufficiency of a petition is by demurrer, and where a petition is challenged solely by an objection to the introduction of any evidence thereunder, such objection, not being favored by the courts, should generally be overruled, unless there is total failure to allege some matter essential to the relief sought. McConnell v. Davis, 46 Okla. 201, 148 P. 687; Sulzberger Sons v. Castleberry, 40 Okla. 613, 139 P. 837.
The evidence of the plaintiff conclusively shows, and it was admitted by plaintiff in error, that the written instrument sued upon was executed by him, and that same was executed with the proviso that same was to operate as a release of any claim of plaintiff against the Success Realty Company, and that upon demand the said Ball had failed to convey said lots, and that said lots con tracted to be conveyed were worth about $1,205. It is the settled rule that a demurrer to the evidence admits every fact which the evidence in the slightest degree tends to prove, and all inferences and conclusions that may be reasonably and logically drawn from the evidence. Wm. Cameron Co. v. Henderson, 40 Okla. 648, 140 P. 404; St. L. S. F. R. Co. v. Snowden, 48 Okla. 115, 149 P. 1083. Applying the above-stated rule, it is conclusively shown that the court did not err in overruling the demurrer to the evidence.
Plaintiff in error insists that the failure to allege and prove a consideration moving from the plaintiff to defendant is fatal to a recovery by the plaintiff in this action. Said contention is without merit. It is entirely immaterial whether or not there was a consideration moving from the plaintiff to defendant for the execution of the paper sued on. If the result of the transaction was, as shown by the evidence in this case, to discharge a liability due to plaintiff by the Success Realty Company, although defendant may not have been personally liable thereon, it was a sufficient consideration for the execution of the instrument sued on in this case.
Cyc., vol. 9, p. 311, states the rule as follows:
"It may be laid down as a general rule, in accordance with the definition given above, that there is a sufficient consideration for a promise if there is any benefit to the promisor or any loss or detriment to the promisee. It is not necessary that a benefit should accrue to the person making the promise. It is sufficient that something valuable flows from the person to whom it is made; or that he suffers some prejudice or inconvenience, and that the promise is the inducement to the transaction."
Defendant admitted that he executed the instrument for which specific performance is prayed; and therefore the presumption of law is that there was a consideration for the execution of the paper. This places the burden upon defendant to overcome such presumption by a preponderance of the evidence, which burden the defendant has failed to discharge.
While it is shown by the evidence that defendant was not in a position to specifically perform the contract, the court, being one of equity, having obtained jurisdiction of the controversy, will retain such jurisdiction for the purpose of administering complete relief and doing justice in the matter, in order to avoid a multiplicity of suits. This rule of equity is universally adhered to by the courts of last resort in the English-speaking world.
Upon a consideration of the whole record, and a careful weighing of the evidence, we find the judgment of the trial court is supported by the weight of the evidence, and that therefore the court did not err in overruling the motion for a new trial.
Finding no prejudicial error in the trial of this cause, the judgment of the trial court should be affirmed.
By the Court: It is so ordered.