Butler Cotton Oil Co. v. Millican

• Citation: 216 Ala. 472,113 So. 529
• Decision Date: 09 June 1927
• Docket Number: 8 Div. 901
• Parties: BUTLER COTTON OIL CO. v. MILLICAN.
• Court: Supreme Court of Alabama

113 So. 529

216 Ala. 472

BUTLER COTTON OIL CO. v. MILLICAN.

8 Div. 901

Supreme Court of Alabama

June 9, 1927

Rehearing Denied June 30, 1927

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by Thomas W. Millican against the Butler Cotton Oil Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Street Bradford & Street, of Guntersville, for appellant.

H.G Bailey, of Boaz, for appellee.

SAYRE J.

Appellee's suit was for commissions for arranging, advertising, and conducting an auction sale of real estate for appellant.

Section 8035 of the Code provides that:

"When lands, tenements, or hereditaments are sold or leased at public auction, and the auctioneer, his clerk or agent, makes a memorandum of the property, and price thereof at which it is sold or leased, the terms of sale, the name of the purchaser, or lessee, and the name of the person on whose account the sale or lease is made, such memorandum is a note of the contract, within the meaning of the preceding section"--the statute of frauds.

The contract in writing between the parties, declared upon according to its legal effect in counts 1 and 4 and put in evidence by the plaintiff, contemplated that plaintiff would comply with the statute so as to bring about a valid and binding obligation between defendant owner and the successful bidders at the sale, and was so considered and treated in the trial court.

The court, over defendant's objection and exception, allowed the plaintiff to testify to the contents of the memoranda of sales made by him or his clerk at the time of the sale. The memoranda were not produced. In this we find no sufficient reason for a judgment of reversal. Plaintiff's testimony was that he had delivered the memoranda to Claybrooke who was defendant's general manager, and who acted for it on the occasion of the sale, and notice to produce had been served on him. In the presence of plaintiff's very definite testimony to the effect above stated, it is not perceived that the court's requirement of a search by plaintiff for the memoranda would have served any useful purpose. Claybrooke, testifying as a witness for defendant, said with equal emphasis that the memoranda had not been delivered to him. The inquiry as to the prerequisite to the admissibility of secondary evidence was one for the court in which the jury had or could have no part. The court's ruling depended in large measure upon the apparent value of the memoranda in the circumstances shown. Speaking generally, the court has said that:

"If any suspicion hangs over the instrument, or that it is designedly withheld, a rigid inquiry should be made into the reasons of its nonproduction. But when there is no such suspicion, all that ought to be required is reasonable diligence to obtain the original--in fact, courts in such cases are extremely liberal." Juzan v. Toulmin, 9 Ala. 662, 44 Am. Dec. 448.

The matter rested in the judicial discretion of the court ( Agee v. Messer-Moore Co., 165 Ala. 291, 51 So. 829; Jones on Ev. [2d Ed.] § 213), and, upon this review, we are unable to pronounce a confident judgment that the trial court committed reversible error at this point.

Defendant requested the general affirmative charge, based, among other things, upon the contention that the memoranda referred to were insufficient under the statute of frauds. It is the duty of the auctioneer selling real estate to make a memorandum that will bind the purchaser. 2 R.C.L.§ 36, p. 1155. Plaintiff recognized his duty in this case and made an effort to perform; that is, he made memoranda of sales in substantial compliance (we may assume) with section 8035 of the Code except in one respect. In making memoranda of the sales of the several parcels in which the land was sold, he described each parcel as follows: "Lot No. so and so and block so and so." We understand that, by the collocation of the words "so and so," the witness attempting to reproduce the memoranda by parol, intended to say that each parcel was indicated by a number, and so with reference to the block in which each parcel was located; this, and nothing more. But this method of designating the parcels sold was not a sufficient compliance with the statute of frauds. Plaintiff offered testimony to the effect that the numbers by which lots and blocks were so designated referred to numbers shown on a surveyor's map or plat of the property showing its division into blocks and lots and according to which the sale was made. But in the memoranda there was nothing to locate, designate, or describe the map or plat. To supplement the memoranda, or supply any of the essential parts of the contract of sale and purchase, parol testimony cannot be received. "The policy of the statute is to exclude testimony of that uncertain character with respect to transactions within its provisions. It therefore requires the substantive parts of the contract to appear in the writing. To admit parol evidence of any of the terms of the contract with respect to which the memorandum is silent, would open the door to the very mischief the statute was intended to suppress." Johnson v. Buck, 35 N.J.Law, 338, 10 Am.Rep. 243. In the cited case plaintiff endeavored to remedy the defects in the memorandum made by recourse to the "conditions of sale." The court noted that, indeed, plaintiff's right to sue was...