Appeal
from circuit court, Montgomery county; John R. Tyson, Judge.
McCLELLAN
J.
All the
facts of this case were agreed upon by the parties, and
stated in writing to the court; and, upon the facts thus
agreed upon and presented to the court, there was, also by
agreement, a trial of the case by the judge of the court
without jury. The conclusion and judgment of the court was in
favor of the defendant, and it is argued that we cannot
review that conclusion and judgment because there was no
special finding of the facts by the judge; reliance being had
in support of this position upon Quillman v. Gurley,
85 Ala. 594, 5 So. 345, and the cases there cited. The
argument and position are untenable. We do not in the least
question the soundness of Quillman v. Gurley, or the other
cases in that line of authority, but, to the contrary
reaffirm them. The infirmity of appellees' contention
lies in its assumption that there was no special finding of
the facts in this case. The court took the agreed statement
of facts-covering, as it did, every fact in the case-as true
and, for all practical purposes, found these facts to be
true, and upon the facts thus specially stated and found to
exist the judgment was rendered. This, we do not doubt, was a
special finding of the facts, within the statute and the
adjudged cases; and the judgment upon them is, in principle
as open to review by this court as if there had been a jury,
a special finding of these facts by them, and a charge to
find for the defendants upon them, with exception reserved.
Skinner v. State, 87 Ala. 105, 6 So. 399; Hardy
v. Ingram, 84 Ala. 544, 4 So. 372.
This is
an action of detinue, prosecuted by Le Bron et al. against
Josiah Morris & Co., for the recovery of a cashier's
check which was deposited with the defendants by one
Pickering for delivery to the plaintiffs if said Pickering
should fail to comply, in certain particulars, with the terms
of a contract entered into by and between him and Le Bron and
associates. The stipulation of this contract providing for
the deposit of this check, or rather money for which the
check was substituted by mutual agreement, is as follows:
"It is further understood and agreed that said F. B.
Pickering shall deposit with Josiah Morris & Co. one thousand
($1,000) dollars, to be forfeited to said A. W. Le Bron if
the land is not purchased and paid for, and the Electrical
Street Railway is not constructed and put into operation, as
hereinbefore covenanted and agreed. Two hundred ($200)
dollars of said amount is to be deposited upon the
organization of a street-railway company by said A. W. Le
Bron, R. P. Dexter, and Phares Coleman, and the transfer by
said Le Bron, Dexter, and Coleman to said F. B. Pickering of
all rights, franchises, stock, property, &c., they may have
in said street-railway company; and the remaining eight
hundred dollars ($800) of said one thousand dollars ($1,000)
is to be deposited with the said Josiah Morris & Co. upon the
deposit with said Josiah Morris & Co. by said A. W. Le Bron
of a list of solvent subscribers to said bonds as required
and stipulated for by the 6th article of this agreement, and
to the satisfaction of the said F. B. Pickering. It is
further understood and agreed that said one thousand dollars
($1,000) so deposited as a forfeiture can be withdrawn from
said bank at any time by a mutual agreement and consent by
said A. W. Le Bron and M. A. Williams." The stipulations
of said contract in respect of the purchase by Pickering of
the land referred to above are contained in paragraphs 1, 3,
4, and 5 of the contract, as follows: "First. The said
A. W. Le Bron, for the considerations and upon the conditions
hereinafter mentioned, covenants and agrees to convey to the
said F. B. Pickering, in fee simple, by warranty deed, two
hundred and thirty-two (232) acres of land, more or less,
known and designated as 'Cloverdale,' and formerly
known as the 'Graham and J. E. Allen Lands,' being on
the east side of the Norman Bridge road, south of the city of
Montgomery, and bought by the said A. W. Le Bron and
associates from the South Montgomery Land Co. The said
warranty deed by said A. W. Le Bron and associates is to be
delivered in escrow to Josiah Morris & Co., to be delivered
by them to F. B. Pickering, or assigns, upon the payment by
him of the consideration, and the performance of the
conditions hereinafter mentioned, which conditions form a
part of these articles of agreement." "Third. The
purchase price of the land herein agreed to be conveyed by
the said A. W. Le Bron and associates to said F. B. Pickering
is one hundred thousand dollars ($100,000), which purchase
money the said A. W. Le Bron hereby agrees can be paid by the
said F. B. Pickering by bonds of the corporation formed and
organized as covenanted and agreed in the second article of
this agreement, at a valuation of eighty (80) cents on the
dollar; it being hereby specially covenanted and agreed that
one hundred and twenty-five thousand dollars ($125,000) worth
of said bonds, at eighty (80) cents on the dollar, hereby
agreed to be paid for said lands, are to be redeemed and
taken up by said corporation at the expiration of twelve
months from the execution of this contract, together with
interest on said purchase money at the rate of 6 per cent.
per annum, to be paid by said corporation when said bonds are
redeemed. It is also expressly understood and agreed between
the parties hereto that said F. B. Pickering, or his assigns,
shall have the privilege and option of taking up and
redeeming said bonds so given as the purchase price of said
land, at any time they may see fit within the twelve (12)
months from date of the execution of this contract. Fourth.
It is also specially covenanted and agreed by and between the
parties hereto that the said bonds given in payment of the
land as above stipulated are to be secured by a first
mortgage on all the lands conveyed by said A. W. Le Bron and
associates, and upon the electrical street railway to be
constructed and operated by said corporation. Fifth. Upon the
completion and operation of the electrical street railway,
and after the execution of a written agreement by said
corporation that it will redeem the bonds given for the
purchase money of the land, as hereinbefore stipulated, some
time, at its option, within twelve (12) months from the date
of this instrument, and upon the delivery by the said F. B.
Pickering of the one hundred and twenty-five thousand dollars
($125,000) in bonds, as above stipulated, to the said Josiah
Morris & Co., to be delivered by them to the said A. W. Le
Bron, it is hereby covenanted and agreed that said deed from
said A. W. Le Bron and associates to said Pickering shall be
delivered by said Josiah Morris & Co. to said Pickering, the
escrow being thereby fulfilled, and all right, title, and
interest in said lands be vested in said Pickering."
The
bonds above referred to were those to be issued by a
corporation which Pickering and his assigns, successors
etc., were to organize "for the development and
improvement of said land, and the construction and operation
of an electric street railway," to which corporation
Pickering was to assign all his right, title, and interest to
the land to be conveyed to him by Le Bron and associates, as
well as all other rights he (Pickering) was to acquire under
the contract. This corporation was organized under the name
of the Cloverdale Land & Development Company. In the agreed
statement of facts, to which this contract was an exhibit, it
was made to appear that, at the time of the entering into
this contract, Le Bron owned no interest in 89 of the 232
acres of land which he thus covenanted to convey to
Pickering, and that he did not subsequently acquire any
interest or title therein or thereto, but this parcel
belonged to one Allen. It was also shown that the remaining
143 acres of said land were owned by McClellan & Scheerer, Le
Bron, and one Agee, Agee owning three-tenths of one-fifth...
