Asbury v. Mountz, 8 Div. 803

• Citation: 176 So. 282,234 Ala. 553
• Decision Date: 07 October 1937
• Docket Number: 8 Div. 803
• Parties: ASBURY v. MOUNTZ.
• Court: Supreme Court of Alabama

176 So. 282

234 Ala. 553

ASBURY v. MOUNTZ.

8 Div. 803

Supreme Court of Alabama

October 7, 1937

Appeal from Law and Equity Court, Lauderdale County; Robt. M. Hill Judge.

Action for breach of covenant by Sophia W. Asbury against Ella J Mountz. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

T.M Thomas, of Florence, and R.L. Polk, of Sheffield, for appellant.

Merwin T. Koonce and A.A. Williams, both of Florence, for appellee.

BOULDIN Justice.

Action by purchaser of building lot against the vendor for breach of covenant to provide water supply or water connection for domestic purposes.

In 1924 an executory contract in writing, in form a lease sale contract, purporting to sell plaintiff a lot in Lee Highway Heights in Lauderdale county, was executed by her as buyer and by "Koonce Real Estate Company, Authorized Dealer, Per, J.F. Koonce. Mrs. Ella J. Mountz, Seller." This instrument stipulated:

"Buyer herewith agrees for himself his heirs, and assigns not to erect any dwelling or business building on above described property costing less than $1,200 and not to sell, lease or rent the above property to anyone but a member of the Caucasian race.

"Seller guarantees graded streets in Lee Highway Heights and water for domestic purposes." The failure on demand to provide "water for domestic purposes" is the basis of the suit.

Among the pleas interposed was the statute of limitations of six and ten years (Code 1923, §§ 8944, 8943).

The evidence without dispute disclosed the defendant was all the while a nonresident of the state, and was absent from the state from the time the alleged cause of action accrued for such periods as would prevent the perfection of a bar under Code, § 8958.

This issue being properly presented by replications, the plaintiff was due the affirmative charge thereon. The court erred in refusing plaintiff's written charge No. 3 withdrawing such issue.

The chief issue of fact arose on the sworn plea of non est factum, denying the execution of such contract by defendant or by any one authorized to bind her in the premises.

The evidence disclosed that defendant had executed to J.F. Koonce, personally, a power of attorney to "grant, bargain and sell" such properties and to execute deeds. The contract stipulated such deed should be executed contemporaneous therewith and put in escrow pending payment of deferred installments. The trial court, in his oral charge, instructed the jury that, if Koonce in person signed the contract pursuant to the power of attorney in evidence, then the contract was signed by some one legally authorized in writing. A direct issue of fact on this point was presented in the evidence.

Defendant's given charge 11 reads: "The court charges the jury, that if any of your number is not reasonably satisfied from the evidence, after you have considered all of the evidence, that plaintiff is entitled to recover, then...