Baker v. Howison

• Decision Date: 16 April 1925
• Docket Number: 2 Div. 832
• Parties: BAKER v. HOWISON.
• Court: Alabama Supreme Court

104 So. 239

213 Ala. 41

BAKER v. HOWISON.

2 Div. 832

Supreme Court of Alabama

April 16, 1925

Appeal from Circuit Court, Bibb County; S.F. Hobbs, Judge.

Action for damages for breach of a contract to convey realty by T.L Baker, as trustee in bankruptcy of W.A. Sibley, against Allen P. Howison. Following adverse rulings on pleading, plaintiff takes a nonsuit and appeals. Affirmed.

Eyster & Eyster, of Albany, and Jerome T. Fuller, of Centerville for appellant.

Lavender & Thompson, of Centerville, for appellee.

THOMAS J.

This is not a bill seeking specific performance, but a suit for damages for the breach of an alleged contract to convey real property.

The nonsuit was taken because of adverse rulings in sustaining demurrers to the several counts of the complaint as last amended.

Count 1 as amended sets out the alleged contract. Said count is as follows:

"The plaintiff, T.L. Baker, as trustee in bankruptcy of W.A. Sibley, who was doing business under the name of Sibley Lumber Company, claims of the defendant the sum of $100,000 damages for breach of a covenant or agreement made and entered into on or about the 4th day of November, 1919, as follows, to wit:

" 'State of Alabama, County of Bibb.

" 'Know all men by these presents that for and in consideration of the sum of twenty-five dollars ($25.00) to me in hand paid by the Sibley Lumber Company of Albany Alabama, to apply on the purchase price of the timber on my lands known as the Maplesville, Randolph, and Vick tracts of land in the counties of Chilton and Bibb, state of Alabama, and containing approximately fifty one hundred (5,100) acres, and being the same lands as indicated on map furnished by me to the said Sibley Lumber Company.

" 'The consideration of this same to be three hundred thousand dollars ($300,000.00). A cash payment of two hundred thousand dollars ($200,000.00) to be paid on approval of title and delivery of deeds, the balance of one hundred thousand dollars ($100,000.00) to be paid in two equal payments, one and two years from date, with interest at the rate of eight per cent. from date. The same to be secured by first mortgage on the timber.

" 'The timber effective by this sale covers all timber on said land, eight inches in diameter and up at the stump, and to be cut twelve inches above the ground.

" 'I hereby allow the said Sibley Lumber Company six years in which to remove the timber from said lands.

" 'The above-named price for this timber, three hundred thousand dollars, to be net to the said Allen P. Howison.

" 'All minor details shall be enumerated at time of the making of deeds to the above lands, and settled by that time.

" 'Allen P. Howison. [ L.S.]

" 'The Sibley Lumber Co.,

" 'By W.A. Sibley. [ L.S.]

" 'Witness:

" 'T.L. Baker.

" 'Grover L. Cleveland.

" 'Nov. 4, 1919.'

"It was the duty of the said defendant under and by virtue of the above set out contract to furnish the said Sibley an abstract of title to the lands, the timber on which was sold by the defendant to Sibley, under said contract, showing that the said defendant owned and was possessed of a merchantable title in and to the lands shown by said map mentioned in the contract, and the furnishing of such by defendant to Sibley was necessary before said Sibley could approve said title to the said lands and the timber thereon, and avers that, although Sibley stood ready, willing, and able to approve the title to said lands, upon the defendant furnishing to him an abstract of title, showing defendant possessed of a good merchantable title, that the failure of said defendant to furnish an abstract to him showing defendant possessed of a merchantable title to the timber, deprived and prevented said Sibley from approving said title, thus plaintiff avers that Sibley was thereby prevented and deterred from approving the title to the lands made mention of in the contract by the defendant, and plaintiff avers that had the defendant been seized and possessed of a good and merchantable title to said lands, and had Sibley not been, as herein alleged, prevented from approving the title to said lands, that Sibley stood ready, willing and able to comply with all the terms and conditions of the above contract, and did comply therewith so far as he could, except as prevented by the said defendant.

"Plaintiff further avers that Sibley made demand upon defendant to furnish him an abstract of title showing that defendant was seized and possessed of a good and merchantable title in and to the lands, and plaintiff avers that defendant failed and refused, upon the demand of said Sibley, to furnish an abstract of title showing defendant seized and possessed of a good and merchantable title to the lands, and therefore to make to said Sibley a good and merchantable title in and to the said lands, wherefore plaintiff avers that the defendant breached his contract to plaintiff's damage, and that plaintiff was damaged as a proximate consequence thereof in this; said timber on the lands which said plaintiff brought [bought] from said defendant on November 4, 1919, at $300,000 was reasonably worth the sum of $400,000. Plaintiff avers that he was duly appointed trustee of the estate of W.A. Sibley, by order of the federal court on, to wit, the 28th day of February, 1921."

Count 11 contained the further averment that it was defendant's duty under the instrument exhibited "to furnish to Sibley a good title to the lands described," and, defendant wrongfully failing in this, "prevented the said Sibley from approving the title to said land," averring that Sibley "stood ready, willing, and able to approve a good and merchantable title to the said lands of the defendant, and to pay to the said defendant the consideration expressed in the contract, and to comply with all terms and provisions of said contract," etc.

Count 13 exhibits the writing of the parties, and avers that it was the duty of Howison to furnish Sibley "an abstract of title to the timber which was sold," "showing that the defendant owned and possessed a good merchantable title in and to the said timber shown by said map mentioned in said contract"; that this "was necessary" before the said Sibley "could approve said title to said timber"; that Sibley was "ready, willing, and able to approve the title to said timber upon defendant furnishing to him an abstract of title," as he was required to do, etc., "showing that defendant possessed of a good merchantable title"; that on request and demand defendant

failed to furnish said abstract "as he was required to do under said contract, showing defendant possessed of a merchantable title to said timber," and thereby deprived and prevented Sibley from "approving the title." The concluding paragraph of that count contains the further averments: "Plaintiff further avers that said Sibley (Sibley Lumber Company) made demand upon defendant to furnish him an abstract of title showing that the defendant was seized and possessed of a good merchantable title in and to said timber, and plaintiff avers that said defendant failed or refused upon said demand of said Sibley (Sibley Lumber Company) to furnish an abstract of title showing defendant seized and possessed of a good and merchantable title to said timber, and therefore to make to said Sibley (Sibley Lumber Company) a good merchantable title in and to the said timber, wherefore plaintiff avers that the defendant breached his contract to plaintiff's damage, and that plaintiff was damaged as the proximate consequence thereof in this. ***"

Among the many grounds of demurrer are contained those to the effect that the averment that defendant failed to present and execute to Sibley or his lumber company "a good and merchantable title" is a conclusion of the pleader; that the averment that plaintiff has complied with the provisions of the contract is a conclusion of the pleader in the failure to aver in what manner the plaintiff has complied; that the complaint fails to aver wherein defendant failed to execute a good and merchantable title to the timber, or that his title was not good and merchantable, or that plaintiff complied with his part of the contract within a reasonable time; and that said contract "was void and incapable of specific performance, in that the same was not binding on each of the parties thereto"--that it sought to bind "the defendant, but same did not require W.A. Sibley or Sibley Lumber Company to comply with the terms thereof." The foregoing will illustrate the rulings of the circuit court in sustaining demurrers to the complaint.

Much argument of appellant is based on the stipulations of the general provisions of the contract of sale which, it is insisted, required the alleged vendor to furnish the purchaser an abstract of title showing a good and merchantable title to the lands in question; and the early cases of Wade v. Killough, 5 Stew. & P. 450, and Chapman v. Lee's Adm'r, 55 Ala. 616, are cited.

The rule in England is that the vendor is required to furnish at his own expense an abstract of every material document of title after the date fixed for the commencement of that title; even though a contract of sale does not expressly require the vendor to furnish an abstract, it is incumbent upon him when so required by the vendee. 39 Cyc. 1516; In re Stamford, etc., Co. [ 1900] 1 Ch. 287; Poppleton v. Buchanan, 4 C.B.N.S. 20; 4 Jur.N.S. 414; 27 L.J.C.P 210; Re Pelly, 80 L.T.N.S. 45; Re Ford, L.R. 10 Ch.Div. 365; Re Johnson, 54 L.J.Ch. (N.S.) 889. In this country the general rule is that in the absence of a specific agreement therefor, the vendor is not required to furnish an abstract showing the condition of his title. Tapp v. Nock, 89 Ky. 414, 12 S.W. 713; Espy v. Anderson, 14 Pa. 308; Smith v. First Nat. Bk., 43...