Carrier v. Eastis

• Citation: 20 So. 595,112 Ala. 474
• Parties: CARRIER ET AL. v. EASTIS.
• Decision Date: 25 June 1896
• Court: Alabama Supreme Court

20 So. 595

112 Ala. 474

CARRIER ET AL. v. EASTIS.

Supreme Court of Alabama

June 25, 1896

Appeal from circuit court, Jefferson county; J. J. Banks, Judge.

Action for money had and received, brought by William Carrier and others against James A. Eastis. There was a judgment for defendant, and plaintiffs appeal. Affirmed.

This was an action for money had and received, brought by the appellants against the appellee. The facts of the case are sufficiently stated in the opinion. The plaintiffs objected to the introduction in evidence of the contract of purchase between the plaintiffs and the defendant on the grounds First, that it was not shown that Terry had authority to sell the lot; and, second, that the agency of Daniel Coleman was not shown to be in writing. The court overruled these objections, and the plaintiffs duly excepted. Upon the introduction of all the evidence, the court gave the general affirmative charge for the defendant. To the giving of this charge the plaintiffs duly excepted. There were verdict and judgment for the defendant. The plaintiffs appeal, and assign as error the ruling of the court upon the evidence to which the exceptions were reserved, and the giving of the general affirmative charge in favor of the defendant.

John W Chamblee, for appellants.

F. E White and Wm. Bethea, for appellee.

HARALSON J.

This suit was commenced by appellants against appellee, on a count for money had and received, on which issue was joined. The plaintiffs claimed that defendant sold them a lot of land on a credit for $500, and $2 rent per month, until the whole purchase price was paid, at which time a deed of conveyance was to be executed to them; that they paid $385 of the purchase money, and ascertaining that the defendant could not make or cause his vendor to make title to the land, they abandoned possession, and making demand of defendant for said sum so paid by them, which he refused to pay, instituted this suit. But the plaintiffs under the facts of the case have misapprehended their remedy, if they have any. The contract between plaintiffs and defendant was in writing and read in evidence against objections of the plaintiffs, which were groundless. The writing was the proper expression of the contract between them, on which the plaintiffs should have been willing to stand. Although clumsily drawn, its meaning is unmistakable, especially when taken in connection with the other evidence. It appears that one Daniel Coleman owning the land in question and being in possession thereof, sold the same to the defendant, through R. J. Terry, his agent, and gave to the defendant a covenant to convey to him on payment of the purchase money. Until full payment had been made for the lot, it is fairly inferable, that defendant was also to pay said Coleman two dollars per month rent for the same. The contract bound the plaintiffs to pay the defendant the sum of $300, which it is admitted was fully paid by them, and it was also admitted that they had paid to Coleman, or his agent Terry, the sum of $85. By the terms of the agreement, in addition to the $300 to be paid to defendant, plaintiffs were bound to pay R. J. Terry, agent for said Coleman, what defendant owed Coleman on his purchase of said lot from him viz., the sum of $200, and the monthly rental of $2 until the principal was paid. When all these payments,-the $300 to defendant and the $200 to Coleman, and the monthly rental up to the time of making them,-were fully made, the contract provides, "Then the said Terry is authorized and instructed to make a deed to lot [describing it] and such conveyance to them to be in full satisfaction of the covenant of the said Daniel Coleman to make such conveyance to me,-witness my hand and seal, this the 11th of September 1888. [Signed] James A. Eastis,] in presence of two witnesses. The plaintiffs...