Ben Cheeseman Realty Co. v. Thompson

• Decision Date: 24 March 1927
• Docket Number: 6 Div. 872
• Citation: 216 Ala. 9,112 So. 151
• Parties: BEN CHEESEMAN REALTY CO. v. THOMPSON.
• Court: Alabama Supreme Court

112 So. 151

216 Ala. 9

BEN CHEESEMAN REALTY CO. v. THOMPSON.

6 Div. 872

Supreme Court of Alabama

March 24, 1927

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action by L.B. Thompson against the Ben Cheeseman Realty Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Code 1923, § 7326. Affirmed.

Haley Woolverton & Haley, of Birmingham, for appellant.

Percy Benners & Burr, of Birmingham, for appellee.

THOMAS J.

This suit is for recovery of damages for breach of written contract for sale or exchange of real property. The questions of specific performance of written contract of sale of real property and sufficiency of description employed were considered in Sadler v. Radcliff (Ala.Sup.) 111 So 231, 233, or when the same may be rendered certain within the rules obtaining in this jurisdiction were considered in the cases of Lodge v. Wilkerson, 165 Ala. 302, 51 So. 609; Sadler v. Radcliff (Ala.Sup.) 111 So. 231; East v. Karter (Ala.Sup.) 110 So. 610.

The contract was between parties understanding and accustomed to the terms employed in their writing, dated at Birmingham, Ala., describing the property of Thompson's as "House at 1333 Clifton Street South," that was subject to first and second mortgages specifically indicated or described by reference, and the property of Cheeseman described as lot 220, Hollywood, according to the survey of Hollywood Land Company, and subject to the first mortgage of $479.50 thereon. These descriptions were such as may be rendered certain as to what each party to the contract agreed to convey by warranty deed to the other.

This case was within the rule of Scott v. Moragues Lumber Co., 202 Ala. 312, 80 So. 394, where it was declared that an offer to charter to plaintiff a vessel for which the other party was negotiating for the purchase was converted into a binding contract by acceptance to be performed within a reasonable time; the promise on either hand constituting the consideration of the promise on the other. The contract here declared upon was not unilateral. Vinson v. Little Bear Saw Mills, 113 So. 385. It is not unusual for a person to contract to convey certain properties by a certain or reasonable time, though he has no absolute or legal title to the lands at the time of making the contract to reconvey. 27 R.C.L. p. 321, § 16; McIntyre v. Jackson Lumber Co., 165 Ala. 268, 51 So. 767, 138 Am.St.Rep. 66; Scott v. Moragues Lbr. Co., 202 Ala. 312, 80 So. 394. The time is sufficiently definite and to be closed within 30 days after delivery of the abstract, provided a longer time is not required to cure defects in the title; and it is stipulated that "each party agrees to furnish abstract of title to their properties, *** and should either prove incurably defective, the above-mentioned moneys are to be returned to their owners." The usual stipulations as to abstracts of title and the duty to furnish the same were discussed in Baker v. Howison, 213 Ala. 41, 104 So. 239.

The evidence shows that Mr. Thompson, and wife, while in the Hollywood subdivision, were approached by an agent employed by the appellant, seeking to sell them a lot in said subdivision. This agent was told that appellee would not trade for the lot until he could dispose of his own property. Thereupon the agent communicated with appellant Cheeseman, had him to come out to the subdivision and confer with the appellee and wife, and the appellant told them that he would sell their property or take it over himself, and thereafter appellant instructed his agent to tell Mr. Nelson that lot 220, the lot in question, was sold. Nelson, prior thereto, had shown the lot to third parties in the effort to sell the same. As stated, the evidence showed that the appellant was a real estate man actively engaged in the real estate business and was one of the promoters of the Hollywood property in which subdivision was lot 220.

The evidence on behalf of the appellee was that the latter informed the appellant of the mortgages on his property and gave him certain details of the mortgages thereof, including those shown in the contract of sale, and also stated that said mortgage was reducible half-yearly. The appellant claimed that he filled in the contract according to the information given him by the appellee. The contract was prepared by the appellant, who, as we have stated, was familiar with the real estate business. Appellant testified that he knew where appellee's property was located and that he had no trouble in locating the lot on the record. The contract of sale described the property by a house number of a certain street. The property was shown to be in Birmingham, and it was further identified as having two mortgages on it. After the contract of sale was entered into, Thompson made preparations to close the trade, sent to New York for his abstract, and his title was favorably approved by appellant's attorney, and he and wife rented a house in Norwood: moved thereto their telephone and some of their furniture.

The evidence further shows that appellant delayed the time for closing, and, after assuring the appellee and his wife on several occasions that the contract would be consummated, finally told the appellee in the presence of his wife and Mr. Turner that he would not carry out the contract. Turner as a witness corroborates the appellee.

After the trade and contract, the lot in Hollywood together with other lots in this subdivision, substantially increased in value--to the extent of some 20 per cent. There was a verdict returned by the jury in favor of Thompson against the appellant for approximately the amount of this increase together with...