
    PABST BREWING CO. v. NELSON et al.
    No. 12600
    Opinion Filed May 26, 1925.
    (Syllabus..)
    1. Appeal and Error — Review—Sufficiency of Evidence.
    Where a ease is tried by the court without the intervention of a jury upon controverted questions of fact, and there is evidence reasonably tending to support the finding and judgment of the trial court, the same (will not be disturbed on appeal.
    
      2. Vender and Purchaser — Breach of Contract to Convey — Measure of Damages.
    Section! 5982, Comp. St. 1921, defines the measure of damages for breach of an agreement to convey an estate in real property.
    3. Same — Absence of Bad Faith and Actual Damages — Nominal Damages.
    In an action for damages for breach of an agreement to convey real estate, jvhere there is no evidence that plaintiff had paid any consideration and no evideuce of expenses incurred in examining the title and preparing the necessary papers, and where there is no evidence of bad faith on the part of the defendant, it is error for the trial court to render judgment for more than nominal damages.
    Errer from District Court, Jefferson County; Cham Jones, Judge.
    Action hy 6. A. Nelson against the Pabst Brewing Company, a corporation, in which William Runge intervenes. Prom a judgment for Nelson, the Pabst Brewing Company appeals.
    Reversed and remanded.
    R. A. Kleinsehmidt and Adelbert Brown, for plaintiff in error.
    Bridges & Vertrees, for defendants in error.
   MASON, J.

This action was commenced in the district court of Jefferson county, Okla., by G. A. Nelson, against the Pabst Brewing Company, a corporation, for specific performance of an agreement to convey certain lots in the town of Waurika, Okla. In ease specific performanlee could not he had, plaintiff then prayed for damages for breach of said agreement. The defendant in error William Runge intervened, claiming to be the oiwner of said property. The case was tried to the court without the intervention of a jury, and judgment was rendered decreeing William Runge to' be the owner of said lots. Judgment was also rendered for the plaintiff. Nelson, against the defendant, Pabst Brewing Company, for $350 damages for breach of said agreement.

The evidence, in’ substance, discloses the following state of facts: That the defendant company was the oiwner of certain' lots witlh a storage building thereon, located in the town of Waurika, the record title of which was in the name of the secretary and treasurer of said company, Henry J. Stark, as trustee; that the intervener. William Runge, had written said company relative to purchasing same, but had received no reply; that thereafter one W. D. Watson, acting for said William Runge, wrote the defendant company, under date of October 15, 1915, requesting defendant’s lowest price thereon.

Further correspondence was had between the company and Watson, after which Watson, in a letter dated November 3, 1919, made an offer of $300. It appears that there was some question on the part of the company as to whether this offer was for the building only, or for both the lots and the building.

On November 14, 1919, the plaintiff, Nelson, wrote said company, requesting its lowest price on said property. The defendant company, under date of November 25, 1919, wrote Wiatson that it would accept his offer of $300 and advised him that another party was interested in the purchasing of same and aaked him to confirm the communication by return mail. On the same date, the company quoted Nelson a price of $300 and advised him that this had been offered to another party and was therefore subject to sale without notice. Watson confirmed the company’s letter, under da.te of November 29th, which was received by the company during the morning of December 2d, in which he also enclosed an Oklahoma form of deed which he requested the company to execute and return to the First State Bank of Waurika, Okla., which would remit $300 as the purchase price. On the following morning, “December 3, 1919,” the company received the followinlg Itelegram from 'the First National Bank of Waurika:

“G. A. Nelson has deposited $300 accepting your offer lots 1 and 2, block 5, city of Wau-rika, asking deed and abstract be sent us for examination and delivery. Answer.”

The defendant company replied with the following telegram:

“Regarding Nelson. Will forward deed and abstract within few days.”

The two foregoing telegrams constitute the agreement upon which the plaintiff, Nelson, predicates his case.

For reversal of the judgment of the trial court, the defendant company contends that there was no valid contract consummated between it and Nelson. In support of this contention, counsel cite section 4968, Comp. St. 1921, which defines a contract as an agreement to do car not to do a certain thing.

Section 4969, Comp. S't. 1921, is then cited, which requires the consent of the parties contracting as one of the essentials to the existence of a valid contract.

They then cite section 4991, Comp. St. 1921. which provides:

“An apparent consent is not areal or free when obtained through * * * mistake.”

It is contended tbiat the evidence discloses that the agent of the defendant company, who sent the telegram of acceptance to the First National Bank, was under the mistaken belief that the telegram of the bank referred to Watson instead of Nelson, and that therefore the apparent consent of the defendant company was not a areal consent.

The record also discloses that on December 4th, the day after the clerk had sent said telegram to the First National Bank, a deed conveying said lots to W. D. Watson and the abstract of title were-sent by the defendant to the First National Bank for collection and the bank vrias requested to remit the $300 which had been deposited therein. Watson, in his letter of confirmation, had requested that the deed be sent to the First National Bank.

The plaintiff denies that a mistake was made and calls attention to several circumstances in the evidence which tend to support such contention.

We probably would conclude, if we were permitted to weigh the evidence, that such mistake had been made, although there is some evidence which reasonably tends to support the contrary view reached by the trial court.

This court, however, is committed to the following rule, which has been repeatedly announced:

“Where a case is tried b.y the court without the intervention of a jury upon controverted questions of fact, and there is evidence a'easonably fending to ©uplport the finding and judgment of the trial court, the same mill not be disturbed on: appeal.” Mott v Zimmerman, 100 Okla. 299, 229 Pac. 227.

In the absence of a mistake no contention is made but that the telegrams above set set out are sufficient to constitute an agreement for sale of said real estate.

Plaintiff in error next contends that, if the plaintiff, Nelson, was entitled to recover any damages, the trial court erred in rendering judgment for more than nominal damages.

Section 5982, Comp. St. 1921, provides:

“The detriment caused by the breach of an agreement to convey an estate in real property is deemed to be the price paid, and the expenses properly incurred in examining the title and preparing the necessary papers, with interest thereon; but adding théreto, in case of bad faith, the difference between the price agreed to be paid, and the value of the estate agreed to be conveyed, at the time of the breach, and the expenses properly incurred in preparing to enter upon the land.”

There is no evidence that any price was paid to the defendant by Nelson, nor is there any evidence of expenses incurred in examining the title and preparing the necessary papers relative to said sale. Therefore, there was no evidence upon which the trial court could render judgment, unless the evidence was sufficient to show the defendant company ivuas acting in bad faith.

Counsel for defendants in error devote several - pages - of their brief to discussing the evidence as set forth herein and insist that the defendant company acted in bad faith.

We have read the entire record carefully and fail -to find the slightest circumstances that would indicate bad faith. There is no evidence which even tends to show that the defendant company knew either Watson or Nelson. Neither is there any evidence that the company had any interest other than to merely liquidate its capital investments in Oklahoma after the brewery business bad materially declined for well-known reasons. On the other hand, we think the record discloses that the defendant was attempting to be extremely fair. Both parties were quoted the same price, but Nelson was advised that his offer was subject to sale without notice because the same price had been made to another. There had been some controversy relative to Wiatson’s offer, and for that reason, no doubt, the company in its letter of November 25fh, requested a confirmation from Watson by return mail. On the same day, Nelson was quoted the same price as Watson, who had made the first inquiry, but he was advised of Watson’s offer, and for that reason the offer was made subject to sale without notice. It is clear that the. company was majking the offer to Nelson so that he might have an opportunity to purchase said lots in case Watson failed to confirm the company’s letter of November ■25th.

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In Words and Phrases, vol. 1, p. 662, bad faith is defined as follows:

‘‘The term ‘in bad faith’ is not a technical term, used only in' actions for deceit. It is an ordinary expression, the meaning of which is not doubtful. It means ‘with actual intent to mislead or deceive another.’ * * * A statutory provision that no immaterial misrepresentation in the application shall avoid a policy of insurance, unless it is made in bad faith, means with an actual Intent to mislead or deceive, and does not include a misstatement honestly made through inadvertence, or even gross forgetfulness or carelessness. Penn. Mut. Life Ins. Co. v. Mechanics’ Sav. Bank & Trust Co. (U. S.) 73 Fed. 653, 654, 19 C. C. A. 316, 38 L. R. A. 33. 70.

“ ‘Bad faith’ and ‘fraud’' are synonymous. Hilgenberg v. Northup, 33 N. E. 786, 787, 134 Ind. 92.
“Bad faith will not be imputed, unless there is something in the particular transaction which is equivalent to fraud, actual or constructive. Morton v. New Orleans & S. Ry. Co. & Immigration Ass’n, 79 Ala. 590, 617.”
* * * where there is no actual fraud, and no proof showing that the color of title was acquired in bad faith, which means in or by fraud, this court iwill hold that it was acquired in good faith.” Coleman v. Billings, 89 Ill. 183, 191.”

There is nothing in this record that indicates that the defendant tended to mislead or deceive Nelson.

There being no evidence of bad faith on the part of the defendant company, Ithe trial court erred in rendering judgment for the plaintiff against the Pabst Brewing Company for damages.

Therefore the judgment of the trial court is reversed and the case remanded.

NICHOLSON, O. J., BRANSON, Y. C. J.r and PHELPS, LESTER, HUNT, CLARK, and RILEY, JJ., concur.

Note. — See under (1) 7 O. J. pp. 950, 962; anno. 23 L. R. A. 756, 24 A. L. R. 586; 3 R. C. L. pp. 776, 777; 1 R. C. L. Su-pp. p. 894, 5 R. O. L. Supp. p. 202. (2) 24 C. J. p. 188.  