Birmingham Warehouse & Elevator Co. v. Elyton Land Co.

• Decision Date: 30 April 1891
• Citation: 9 So. 235,93 Ala. 549
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM WAREHOUSE & ELEVATOR CO. v. ELYTON LAND CO.

9 So. 235

93 Ala. 549

BIRMINGHAM WAREHOUSE & ELEVATOR CO. v. ELYTON LAND CO.

Supreme Court of Alabama

April 30, 1891

Appeal from chancery court, Jefferson county; THOMAS COBBS Chancellor.

Garrett & Underwood, for appellant.

Alex. T. London, for appellee.

COLEMAN J.

Complainant's bill is in equity, and filed to obtain the rescission of contract upon the grounds of misrepresentation. On the 9th of March, 1887, James S. Van Hoose and others, desiring to organize a corporation to be known as the "Warehouse &amp Elevator Company," purchased from the defendant two blocks, numbered 210 and 427, in the city of Birmingham which fronted north on Eighth avenue 800 feet, and were bounded on the east 500 feet by Twenty-Ninth street. They paid $5,000 in cash, and, after the organization of the company in accordance with the terms of the purchase, its notes, nine in number, each for $5,333.27, were executed for the balance of the purchase money. Bond for titles were made to Van Hoose, in trust to be transferred by him to the warehouse company, and which was due when it was organized as a corporation. The purchase of the blocks were effected through H. M. Caldwell, the president of the Elyton Land Company, who then had charge and control of the sales of the land of said land company. The representation made by H. M. Caldwell, as averred in the bill, and which are relied upon as the grounds of relief, are as follows: That Van Hoose made known to Caldwell their desire and intention to organize the Birmingham Warehouse & Elevator Company, and desired to purchase a tract of land suitable for such business, and wanted and required a location where they could have connection with all the railroads entering into the city of Birmingham, and, if they could secure such a location from the Elyton Land Company, they would at once organize the corporation and purchase the location; that thereupon Caldwell pointed out blocks 210 and 427, and recommended them as specially suited for that purpose, and, in order to induce said Van Hoose and associates to purchase the same for their proposed corporation, stated and declared to Van Hoose the following facts, which were peculiarly and solely within the knowledge of said Elyton Land Company, its officers and servants: "I will tell you something I have not told any one else, and what is not generally known. We are building our belt railway right down 29th street, so that you see we will pass that ground 500 feet on its east side, and we can turn it down all along the 8th avenue front." Then Van Hoose asked Caldwell how long it would be before the belt railroad would be completed past blocks 210 and 427? And the said Caldwell answered: "We are at work on it now. The engineers are out there now at work on it." These are the representations of facts as stated in the bill made by Caldwell to Van Hoose, which induced the purchase, and without which, it is alleged, the purchase would not have been made. The bill avers that the belt road was not, and never has been, completed along said blocks on Twenty-Ninth street, and that a belt road connecting with the railroads was necessary for the business of the company, and without it the business could not be carried on successfully. The bill avers that, "relying upon the statement, assurances, and promises of the said Caldwell, that the belt road was being built and would be completed as it had originally agreed to do when it sold the land," blocks 210 and 427 were purchased, and the company organized. A demurrer to a bill admits all material facts well pleaded, but a demurrer does not admit conclusion of law or inference of facts. Flewellen v. Crane, 58 Ala. 627; Cockrell v. Gurley, 26 Ala. 405; Duckworth v. Duckworth, 35 Ala. 70. Upon demurrer, in determining whether a fact is averred or not, the bill will be construed most strongly against the pleader; for the presumption is that the material facts not averred do not exist. Jones v. Latham, 70 Ala. 164; Bercy v. Lavretta, 63 Ala. 374; Reel v. Overall, 39 Ala. 142. The bill does not aver that the engineers were not at work at the time and place and for the purpose as represented by Caldwell, or that the statements to this effect were not true, and, under the influence of the foregoing rules, we must presume they were true. The averment that complainants relied upon the "assurances and promises of Caldwell to complete the belt road as he agreed to do at the time he sold the land," will not supply a failure to aver facts necessary to constitute an assurance or promise to complete the road The statement of facts contained in the bill do not authorize the conclusion averred; they do not show a promise or agreement on the part of the defendant to complete the belt railroad down Twenty-Ninth street, along-side of blocks 210 and 427. If the facts averred constituted an agreement to build the belt road, plaintiff's relief for breach of contract would not lie in the present form of action under the facts alleged in the bill. We do not wish to be understood as holding that a promise or agreement in...