Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
Gall brought this action against the Brashiers in the district court of Garvin County, Oklahoma, for specific performance of an agreement to give an oil and gas lease on certain lands in Garvin County, owned by the Brashiers and others. The case was duly removed to the United States District Court. The trial court sustained a motion to dismiss the second amended complaint*fn1 and dismissed the action.
The complaint alleged that on January 6, 1947, Gall entered into negotiations with Ernest Brashier to acquire an oil and gas lease upon a tract of land in Garvin County, particularly described in the complaint; that thereafter the Brashiers, acting through their agent and attorney, Samuel Hurwitz, made a firm offer to lease such lands to Gall for a cash bonus of $12,000, $1,000 to be deposited in the First National Bank of Orange, California, as a part payment on the lease, and the banlance to be paid on or before January 24, 1947, after title examination showing a merchantable title in the Brashiers; that on January 18, 1947, Gall sent a telegram to the First National Bank of Orange, California, reading as follows:
"I am forwarding to you by Western Union $1000 to be delivered to Sam Hurwitz when I approve title to certain properties which I am buying from his clients, E. A. Brashier. I will advise you when to release the $1000 to Mr. Hurwitz";
that on the same day, Gall sent a telegram to Hurwitz reading as follows:
"This is to confirm our telephone conversation in regard to purchase by me of oil and gas lease covering NW 1/4 SE 1/4 Section 8, Township 1 North, Range 2 West, Garvin County Oklahoma for consideration of $12,000, lease to be executed by E. A. Brashier and others on the form forwarded to Mr. Brashier by me. I have forwarded to First National Bank, Orange, California, $1000 as part payment and good faith money on this transaction. You are to forward duly executed oil and gas lease to Tradesmens National Bank, Oklahoma City, with draft attached in amount of $11,000 drawn on me and payable to you or your clients. This draft is to be payable on or before January 24, 1947, upon approval of title by me. If I do not approve title as merchantable and find that it cannot be perfected I will return lease to you and First National Bank, Orange, California, is to return to me the $1000 deposited with them today. Please wire your confirmation of this transaction to me";
that Hurwitz represented the Brashiers, who were part owners of the land, and J. A. Barnett and William L. Barnett, who owned the remaining interest; that after sending the last-mentioned telegram, Gall talked to Hurwitz by long distance telephone and advised the latter that he had forwarded the $1000 to the bank; that Hurwitz told him the terms were satisfactory to the Brashiers and Barnetts; that the Barnetts lived in the northern part of California and were on their way to Orange, California, and that the Barnetts and Brashiers would sign the lease late that day, or the following day, and that it would be mailed as agreed upon; that the owners would not furnish an abstract, but that Gall would have to procure an abstract for the examination of the title; that immediately thereafter, Gall ordered an abstract; that on January 20, 1947, at Orange, California, the Barnetts and their wives and each of the Brashiers executed the lease on a form furnished by Gall in accordance with the terms of the alleged agreement, and delivered the same to Hurwitz with instructions to complete the transaction by forwarding the lease, with a draft for $11,000, to the Tradesmens National Bank of Oklahoma City, Oklahoma; that on January 21, 1947, the Brashiers revoked such instructions, withdrew the oil and gas lease, and entered into negotiations to execute a lease to a party unknown to Gall; that on January 21, 1947, Hurwitz sent a telegram to Gall reading as follows:
"Regret my clients have rejected your offer. They apparently have closed another deal";
that Gall commenced this action on January 24, 1947; that on January 25, 1947, there was presented to the County Clerk of Garvin County, for filing and recording, an oil and gas lease which had been executed by the Barnetts and Brashiers on the form furnished by Gall; that the name of Gall had been erased in such instrument and the name of Robert S. May, as lessee, inserted; that the term of the lease had been changed from 5 years to 10 years, and the date changed to January 22, 1947.
Gall prayed for specific performance, or, in the alternative, for damages in the sum of $15,000.
Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that "in pleading to a preceding pleading, a party shall set forth affirmatively * * * statute of frauds. * * *" However, since the contention that the statute of frauds must be affirmatively pleaded was neither raised here nor below, and since the essential facts seem to appear affirmatively on the face of the complaint, we shall undertake to determine whether the lease and the telegrams met the requirements of 15 O.S.A. § 136, which reads as follows:
"The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or by his agent:
"5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the ...