Alabama Mineral Land Co. v. Jackson

• Decision Date: 11 April 1899
• Citation: 121 Ala. 172,25 So. 709
• Parties: ALABAMA MINERAL LAND CO. v. JACKSON.
• Court: Alabama Supreme Court

25 So. 709

121 Ala. 172

ALABAMA MINERAL LAND CO. v. JACKSON.

Supreme Court of Alabama

April 11, 1899

Appeal from circuit court, Chilton county; N. D. Denson, Judge.

Action by the Alabama Mineral Land Company against Elihu E. Jackson. There was a judgment for defendant, and plaintiff appeals. Affirmed.

The plaintiff claimed $45,000 damages for the breach of a contract in writing entered into by and between the plaintiff and the defendant on September 15, 1892. The substance of the contract, and the breaches thereof, as averred in the complaint, are sufficiently stated in the opinion. The defendant, E. E. Jackson, filed several pleas, all of which were, on his own motion, withdrawn, except pleas numbered 4 7, 8, and 9. By pleas 7 and 9 the defendant interposed the defense of the statute of frauds, and averred that the description of the 10,000 acres of land, the timber upon which was sold or contracted for by said contract, was too vague, uncertain, and indefinite to support an action for the breach of said contract. Plea No. 4 was as follows "Comes the defendant, E. E. Jackson, and, for answer to the complaint, saith that the contract upon which the action was founded was not executed by him, nor by any one authorized to bind him in the premises, and he makes oath that this plea is true." To this plea was attached the affidavit of the defendant, E. E. Jackson, in which he stated that the averments of said plea were true. By plea No. 8 the defendant averred that the plaintiff did not own, and never did own, the timber on said lands, which, under the contract it was open to defendant to designate. To the fourth plea the plaintiff demurred upon the grounds that said plea was no answer to the complaint, for one partner may bind another, in such a contract as here sued on, by signing for both, or by signing the firm name. To the seventh and ninth pleas the plaintiff demurred upon the following grounds: "(1) The complaint does not claim damages for the breach of a contract for the sale of lands, but for the breach of a contract to make or complete a contract for the purchase of timber on lands. (2) A contract to make a contract for the sale or purchase of timber on lands is not within the statute of frauds. (3) The contract, as set out in the complaint, shows that plaintiff has complied with the statute of frauds, and is bound thereby, and defendant is also bound. (4) Defendant cannot willfully refuse to designate said timber lands as provided for in the contract sued on, and then claim the benefit of his own wrong. (5) Said complaint declares against E. E. Jackson and W. H. Jackson as partners, and said plea No. 7 does not aver that the purchase of said timber was outside or beyond the scope of said partnership. (6) Because the reference in said contract and in said plea to the terms of payment, and the substitution of timbered lands for other lands which had been cleared, and what particular 10,000 acres were to be selected, or in what section or township they were to be selected, are not necessary to entitle plaintiff to recover, when defendant willfully refused to designate said 10,000 acres, and also willfully refused to complete the contract. (7) For that it would make no difference what state or county, township or range, said block of 10,000 acres would lie in, when defendants willfully refused to designate the lands, the timber upon which was sold to them. (8) When defendants refused to designate the said 10,000 acres, they estopped themselves from pleading the vagueness or uncertainty of the contract, or the indefiniteness of the description of the lands, the timber upon which was sold to them." To the eighth plea the plaintiff demurred upon the following grounds: "(1) Defendant, being a vendee of plaintiff, is estopped to deny plaintiff's title to the timber sold. (2) Said plea No. 8 does not aver that plaintiff could not have acquired the timber on the lands sold under said contract in time to comply with its contract. (3) For that party may sell that which he does not own, if he can acquire the same in time to comply with the terms of his sale." The demurrers to each of the pleas were severally overruled, and, the plaintiff declining to plead further, judgment was rendered in favor of the defendant. The plaintiff appeals, and assigns as error the ruling of the court upon the pleadings.

J. J Willett and S.D. Logan, for appellant.

Gunter & Gunter, for appellee.

McCLELLAN C.J.

Writings were signed by the Alabama Mineral Land Company and E. E. Jackson by which, in terms, the latter was to purchase from the former, at a stipulated price per acre, "the timber from a continuous block of ten thousand acres, consecutive sections, in a northwesterly line from Maplesville, townships 21 and 22"; the purchaser to determine upon a continuous body of lands, mineral lands excepted, and to designate the same to seller on a day named. It was further stipulated that in "case of any material tract recently timbered having been cleared of said timber, or pillaged of same, to any material extent, the seller will substitute other lands for cutting in its stead" at any time prior to a stated date. The purchaser failed to determine upon and designate a body of lands, or the lands contemplated in the agreement, and failed to make the payments provided for in the writing. The action is prosecuted by the land company. The complaint claims $45,000 damages for the breach of the alleged contract stated above, which is set out in the complaint; and the plaintiff, after averring that it had fully complied with all the provisions of said contract on its part, assigned the following breaches thereof on the part of the defendant: "First, that defendant failed to designate the lands on which he was to cut and remove the timber, and has failed to make payment for said timber as provided in said contract; second, defendant willfully refused to complete said contract, by willfully refusing to designate said ten thousand acres from which the timber was to be cut; third, defendant has failed and refused to purchase the timber from said ten thousand acres as provided in said contract, and has failed and refused to pay for the same." To this complaint the defendant pleaded, among other defenses, the statute of frauds, for insufficient description of the land, an interest in which was intended to be embraced in the contract. Plaintiff demurred to the pleas (7 and 9) setting up this defense, and its demurrers were overruled. This ruling presents the question of importance involved on this appeal.

Under the statute of frauds the written agreement or memorandum must describe the subject-matter directly, or by reference to something outside of the writing, by resorting to which certainty may be attained. It requires no discussion to demonstrate that the contract under consideration does not either in itself or by reference,...