Able v. Gunter

• Decision Date: 19 January 1912
• Citation: 57 So. 464,174 Ala. 389
• Parties: ABLE v. GUNTER.
• Court: Alabama Supreme Court

57 So. 464

174 Ala. 389

ABLE v. GUNTER.

Supreme Court of Alabama

January 19, 1912

Appeal from Chancery Court, Covington County; L. D. Gardner Chancellor.

Bill by W. E. Gunter against Wayne Able to specifically enforce a contract. Decree for complainant and respondent appeals. Affirmed.

The bond for title directed to be set out is as follows "State of Alabama, Covington County. Know all men by these presents, that we, Wayne Able and H. H. Hogg, are held and firmly bound to W. E. Gunter, in the sum of $2,200.00 for the payment of which we hereby bind ourselves, our heirs and personal representatives. Signed and sealed by us this the 12th day of February, 1904. But the condition of the above obligation is such that, whereas, the said Wayne Able has sold to W. E. Gunter, for the sum of $1,100.00, which is to be paid as follows: $220.00, Nov. 1, 1904; $220.00, Nov. 1, 1905; $220.00, Nov. 1, 1906; $220.00, Nov. 1, 1907; and $220.00, Nov. 1, 1908--a certain tract of land, lying and being in the county of Covington, state of Alabama, and described as follows, to wit: The N.W. 1/4 of section 12, township 5, range 15. Now, if the said W. E. Gunter shall pay the said sum of $1,100.00 as the payments become due, and the said Wayne Able shall by warranty deed convey a fee-simple title to the above-described premises to the said W. E. Gunter, then this instrument shall be null and void; otherwise, to remain in full force and effect." Signed by Wayne Able and H. H. Hogg. Recorded. Indorsed on the bond is as follows: "Received on the within bond $330.29, first payment, and rent for the first year." "Received on the within bond $220.00, second payment, and rent for second year." "Received on the within bond $220.00, also cotton as interest." "Received on the bond $220.00, Nov. 1, 1907." Each signed: "Wayne Able."

A. R. Powell and W. L. Parks, for appellant.

Reid & Prestwood, for appellee.

McCLELLAN J.

This bill, exhibited by a vendee, seeks the specific performance of a contract to convey land. A bond for title was executed by the vendor (appellant) to the vendee (appellee). It will be set out in the report of the appeal.

Appellant's contention is thus succinctly stated in brief by his solicitors: "The contention of appellant, Able, is that it was the agreement and intention of the parties to the contract, though not so expressed, that Able should have the rent according to Benton's lease, in lieu of interest; that it was a part of the consideration of the contract. If this is not true, then appellant contends that part of the contract was orally modified subsequently by the parties when Gunter purchased the possessory interest of Benton and assumed payment of the rent to Able. If this is true, then Gunter has not complied with the contract, and was not entitled to relief."

The contract, the performance of which is sought to be enforced, is that expressed in the bond for title. The sole substantive obligation placed upon and assumed by the vendee thereunder was to pay the sum named at the time stipulated therein; whereupon it was the obligation of the vendor to convey the land to the vendee as he engaged to do. Such was the construction of a similar instrument taken in Sims v. Knight, 71 Ala. 197, wherein Chancellor Turner's opinion was, in substance, adopted by this court. The adopted opinion there said: "* * * It is upon payment, and upon payment only, that the bond is conditioned and the agreement to sell and convey is predicated."

Consistent with the construction indicated, the first insistence for appellant cannot prevail, since to approve it would materially vary the obligation assumed by the vendee under the written instrument defining the condition upon which the vendor should convey to him. Parol evidence of prior or contemporaneous verbal agreements varying or adding to the written contract is not admissible. Thompson F. & M. Co v. Glass, 136 Ala. 648, 33 So. 811; Forbes v. Taylor, 139 Ala. 286, 35 So. 855; 9 Ency. Ev. pp. 331-334. It is true that, between the parties thereto, the consideration of contracts is open to inquiry by parol. Foster v. Bush, 104...