Blackburn v. McLaughlin

• Decision Date: 19 December 1918
• Docket Number: 2 Div. 675
• Citation: 202 Ala. 434,80 So. 818
• Parties: BLACKBURN v. McLAUGHLIN et al.
• Court: Alabama Supreme Court

80 So. 818

202 Ala. 434

BLACKBURN v. McLAUGHLIN et al.

2 Div. 675

Supreme Court of Alabama

December 19, 1918

Rehearing Denied Feb. 13, 1919

Appeal from Circuit Court, Perry County; B.M. Miller, Judge.

Bill by James T. Blackburn against Rowena McLaughlin and others. From a decree sustaining a demurrer to the bill, complainant appeals. Reversed and remanded.

A.W Stewart, of Marion, and R.B. Evins, of Greensboro, for appellant.

Nathan L. Miller and Needham A. Graham, Jr., both of Birmingham, and William L. Hogue, of Marion, for appellees.

SAYRE J.

Blackburn who was complainant in the court below, takes this appeal from the decree by which the court sustained defendants' demurrer to his amended bill of complaint. In 1907 the parties had entered into an agreement in writing by which defendants leased to complainant a tract of land in Perry county. The fifth clause of the contract stipulated as follows:

"5. The party of the second part [complainant] shall have the right at any time during said term to purchase said land at the price of eight thousand dollars ($8,000.00) and in event of such purchase, the parties of the first part, or such of them as are necessary to convey title to said land will execute and deliver to him a good and sufficient deed to said land, describing the same fully by land numbers and boundaries as may be necessary upon the execution and delivery by said party of the second part of his note for said sum of $8,000, payable to the owners of said land, ten (10) years after date and secured by good and sufficient mortgage on said land and said debt drawing interest from date, payable annually. Said mortgage to contain a clause giving said party of the second part the privilege of paying all of said amount on any interest day and interest on the balance to cease from such payment."

May 3, 1916, complainant mailed from Marion the following letter:

"Mrs. Rowena McLaughlin, Miss Alma McLaughlin, Mrs. Emma Boyles, Aliceville, Ala., and Birmingham, Ala.--My Dear Ladies: On the 30th day of September, 1907, I made a contract with you and in clause five of said contract it is written, that 'party of the second part shall have the right at any time during said term to purchase said land at the price of eight thousand dollars ($8,000) and in event of such purchase, the parties of the first part, or such of them as are necessary to convey title to said land, will execute and deliver to him a good and sufficient deed to said land, describing the same fully by land numbers and boundaries as may be necessary upon the execution and delivery by said party of the second part of his note for said sum of $8,000.00 payable to the owners of said land, ten (10) years after date and secured by a good and sufficient mortgage on said land and said debt drawing interest from date, payable annually. Said mortgage to contain a clause giving said party of the second part the privilege of paying all of said amount on any interest day and interest on the balance to cease from such payment.'

"I am now ready to buy said land under the terms of said contract, and request that you mail to the Marion Central Bank or either the People's Bank of Marion, Alabama, a good and sufficient deed to me for said land under the terms of said contract, and when the deed is shown to be good and sufficient by my attorneys, I will execute and deliver to you my note for the eight thousand dollars, secured by a mortgage on said lands under the terms of said contract.

"Trusting that you will attend to this matter at once, I am,

"Most respectfully yours, J.T. Blackburn."

Receiving no reply, complainant, still within ten years of the date of the contract, filed this bill for a specific performance, averring in third paragraph:

"Complainant avers that he was, on the 3d day of May, 1916 [the date of his letter, supra], and has been ever since that date, and is now, ready, able, and willing to execute this note to the owners of said land in the sum of $8,000, payable ten years after date and secured by mortgage on said lands as provided for in said contract, and to do whatsoever is required of him, to receive from them the deed to said property contracted to be executed and delivered to him."

The prayer of the bill is for a decree requiring that--

"The said defendants shall, upon the execution and delivery to them by the said complainant of the note and mortgage provided for in paragraph 5 of the contract, *** execute and deliver to the said complainant the deed provided for in said paragraph," etc.

Defendants (appellees) contend that there has never been any acceptance of the offer contained in the option, and therefore that there is no contract to be enforced. It may be conceded that the letter which complainant wrote to the owners of the property. parties also to the contract, was a counter proposition rather than an unqualified exercise of his option according to its precise terms; but that does not necessarily deny the equity of the bill, for the right to specific performance in a court of equity grows out of the contract, not out of a breach of it by defendant, and when complainant avers his readiness, willingness, and ability to perform, he avers all that is necessary to invoke the jurisdiction of the court. Jones v. Sommerville, 1 Port. 437; Broughton v. Mitchell, 64 Ala. 210; Long v. Addix, 184 Ala. 236, 63 So. 982.

It is urged in support of the decree that the contract which complainant sought to enforce was unilateral, and, in any event, that the language of the contract, viz., "upon the execution and delivery by said party of the second part [complainant] of his note *** secured by good and sufficient mortgage on said land," made the tender of note and mortgage a condition precedent to complainant's right to a conveyance, and that complainant's bill was fatally defective for that he failed therewith to make the necessary tender. In respect to the first branch of this contention, it may be said generally that, although there may be a lack of mutuality in the beginning, this may be cured by the unbound party subsequently binding himself also by promise or act. 9 Cyc. 333; Sheffield Furnace Co. v. Hall Coal & Coke Co., 101 Ala. 446, 14 So. 672. As covering the contention in both aspects, we prefer to quote the language of Chief Justice Beasley in Richards v. Green, 23 N.J.Eq. 536:

"It is true that there are exceptions to the rule that a court of equity will not perform unilateral contracts, as, for instance, in those cases where an agreement, which the statute of frauds requires to be in writing, has been signed by one of the parties only" (such a case we considered in Wood v. Lett, 195 Ala. 601, 71 So. 177) "or when the contract, by its terms, gives to one party a right to the performance which it does not confer upon the other, an example of which is exhibited in *** a lease for years which gives an option to the lessee to purchase during the term"--just the case here. "But it will be observed that, when such contracts come to be enforced in equity, they cease to be unilateral, for, upon filing the bill, the party who was before unbound puts himself under

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