Bohanan v. Dodd
| Decision Date | 19 December 1912 |
| Citation | 60 So. 955,7 Ala.App. 220 |
| Parties | BOHANAN ET AL. v. DODD. |
| Court | Alabama Court of Appeals |
On Application for Rehearing, Jan. 13, 1913.
On Application for Rehearing.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
Action by J. R. Thomas, revived in the name of Osceola Dodd, as administrator, against D. P. Bohanan and another. From a judgment for plaintiff, defendants appeal. Affirmed.
Street & Isbell, of Guntersville, for appellant.
E. O. McCord and Thomas E. Orr, both of Albertville, for appellee.
This suit was revived in the name of the administrator as the personal representative of the appellee, J. R. Thomas, after judgment in the trial court, and is the second appeal in the case. See Bohanan v Thomas, 159 Ala. 410, 49 So. 308. The present action was brought by appellee's intestate, Thomas, against the appellant, Bohanan, for the breach of a contract by the terms of which Bohanan agreed to erect a frame building by a designated time on a certain 80 acres of land contemporaneously sold by Bohanan to Thomas. The principal contention, as stated by the appellant, arises on the defendant's pleas Nos. 7 and 8, averring that the contract sued upon had been assigned to one Hood before action was brought on it by Thomas. On the former appeal these pleas (7 and 8) were held to be good, as against the demurrers assigned to them, and, on the trial resulting in a judgment from which this appeal is prosecuted, the case was tried on issues made up under these pleas, among others.
It appears from the testimony set out in the bill of exceptions that there was a conflict in the evidence on the issues tendered by these pleas, and the court very properly submitted the question thus in conflict under the evidence to the jury for determination.
It would appear from the argument of counsel for appellant in brief that it is their contention that because the contract required the building to be built upon the land conveyed by Bohanan to Thomas, when Thomas conveyed the land to one Hood before the commencement of the suit, the house, or the right to have it built, passed as a matter of law as a covenant real with an alienation of the land by Thomas and that Hood became the beneficial owner of the demand sued upon and the party in whom the legal interest in the contract was vested.
A fixture which would otherwise be a part of the realty may by agreement of the parties be severed and become a personal chattel as between the parties. Harris v. Powers, 57 Ala. 139.
In this case the house had not been built upon the land. The contract was executory, and the evidence is in conflict as to whether Thomas included the contract or the right to have the house built, when he alienated the land to Hood, or whether he expressly reserved unto himself all rights growing out of the contract with Bohanan, including the right to sue and recover for the breach of the contract which had occurred some time prior to the conveyance to Hood. The question, then, of whether or not Thomas had assigned the contract before suit was brought and was not the beneficial owner of the demand sued upon, was purely a question of fact upon which the evidence was in conflict.
Counsel for appellant also contend that, as Thomas had treated the contract as a continuing contract and was insisting upon its being carried out and the house built on the land in question, up to a short time before the sale by him to Hood he cannot recover for a breach of the contract, but is remanded to an action for specific performance, or at most could but complete the contract, and that then the right to recover upon a quantum meruit would inure to Hood, the owner of the land. The statement of the proposition, viewed in connection with the evidence, carries with it its own answer. During the period that an insistence was being made by Thomas that the contract be complied with, Bohanan had the right to build the house and discharge his obligation under the terms of the contract. But the evidence is without dispute that up to the time suit was brought for the breach of the contract Bohanan had not made the slightest effort to comply with the contract, and that he did not at any other time make such effort. The evidence was also without conflict that the time for the performance of the conditions of the contract had passed, and that Bohanan had failed to perform the contract without good excuse and without fault upon the part of Thomas. The mere fact that Thomas had insisted upon Bohanan's fulfilling the agreement after the time designated for the performance and up to a...
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