Campbell v. Lombardo

• Court: Alabama Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: Campbell v. Lombardo, 153 Ala. 489, 44 So. 862 (Ala. 1907)
• Decision Date: 14 November 1907
• Parties: CAMPBELL v. LOMBARDO.

44 So. 862

153 Ala. 489

CAMPBELL v. LOMBARDO.

Supreme Court of Alabama

November 14, 1907

Appeal from Chancery Court, Madison County; W. H. Simpson Chancellor.

Bill by Hattie Lombardo against Dan Campbell for specific performance. From a judgment for complainant, respondent appeals. Affirmed.

For the pleadings, see former appeal in this case. Campbell v Lombardo, 39 So. 573.

The contract sought to be enforced was in words and figures as follows: "Huntsville, Ala., June 4, 1903. Received of Mrs. Hattie Lombardo the sum of $10 in part payment of lot this day sold her for $1,700 cash. Said lot is situated in the city of Huntsville, state of Alabama, on the corner of Arms and Church street, owned by Daniel Campbell. Upon delivery of deed by said Campbell the said Mrs. Lombardo is to pay the balance of the $1,700, namely, $1,690. [ Signed] Hattie Lombardo. Jones & Rison, Agents for Daniel Campbell." The bill contained an averment of an offer and readiness and willingness to pay, and the bill avers that the property referred to is lot No. 13, block No. 297, in the city of Huntsville. The evidence tended to show that Jones &amp Rison wrote Campbell that they had an offer of $1,500 for the property and advised an acceptance of it, at the same time stating that their commissions would be $75, netting him for the property $1,425. In reply to this letter Campbell wrote on May 15, 1903, to Jones & Rison as follows: "Yours of the 12th inst. to hand. Will say don't sell for the price offered. * * * I think $1,700 is a fair price and would be acceptable to me. [ Signed] Daniel Campbell." On June 4th the above set out contract was made. On July 2, 1903 Campbell wrote Jones & Rison as follows: "Your letter and check for $38 received. I have decided to hold the place longer, and will not sell for less than $1,700 net; that is, $1,700 clear of your commission."

Oscar R. Hundley, for appellant.

Cooper & Foster and F. T. Petty, for appellee.

ANDERSON J.

When this case was here on former appeal this court held, and properly so, that the contract of sale entered into between "Jones & Rison," as agents, and the appellee, Lombardo, was wholly complete and such as could be specifically enforced in equity. Campbell v. Lombardo, 39 So. 573.

The present appeal is intended to question the sale upon the idea that Jones & Rison had no authority to make the contract in question and that the appellant, Campbell, was not bound thereby. The letter from Jones & Rison submitted an offer to "Campbell" of $1,500 for the property, but informed him that it was not net, and that they must have 5 per cent commissions for making the sale. Campbell replied, declining to accept the offer, but made a counter one: "Don't sell for price offered. However, I am thankful for your attention and price offered. I think $1,700 is a fair price and would be acceptable to me." The offer being for a sum with commissions deducted, the reply and counter offer clearly meant that the writer...