Chandler v. Wilder
| Decision Date | 04 November 1926 |
| Docket Number | 7 Div. 659 |
| Citation | 215 Ala. 209,110 So. 306 |
| Parties | CHANDLER v. WILDER et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.
Action by H.J. Chandler against E.C. Wilder and another. From a judgment for defendants, plaintiff appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.
Hugh Reed, of Center, for appellant.
E.O McCord & Son, of Gadsden, for appellees.
The cause went to trial on the common count for money had and received, plea of the general issue, certain special pleas and special replications thereto. The purpose of the suit is to recover money paid under an executory contract for the purchase of lands, which was never consummated.
The contract is evidenced by the following receipt:
No payment other than the $500 shown in the receipt was ever made nor security given. Possession was never delivered to the purchaser.
Appellant plaintiff below, raises the point that this receipt does not meet the requirements of the statute of frauds. If so, it was voidable at the will of either party, and the purchaser entitled, upon demand, to a refund of the money paid.
The equitable action for money had and received is supported by any state of facts showing money in the possession of the defendant which in equity and good conscience belongs to the plaintiff, and which he is entitled to receive.
The special point of attack upon the contract is in the clause of the receipt requiring the deferred payment "to be secured to my satisfaction." The argument is that this leaves open to future treaty the nature and sufficiency of the security, gives the vendor the power to exact arbitrary or unusual security, and renders the contract void for uncertainty.
In general the writing must show, expressly or by necessary implication, all the elements of a valid contract for the sale of lands, viz., the property, the parties, the consideration, including terms of payment, and the obligation or promise of each of the parties, and be duly subscribed. Nelson v. Shelby Mfg. Co., 96 Ala. 515, 11 So. 695, 38 Am.St.Rep. 116. No particular form of contract is essential; it is sufficient if these matters substantially appear. In our opinion, the clause in question does not leave the transaction so open to future treaty and understanding as to vitiate the contract under the statute of frauds.
Security to the satisfaction of the vendor has a legal, contractual meaning. He contracts to accept satisfactory security; he cannot demand capricious, unusual, and unreasonable security in form or amount. His obligation is to inform the purchaser of the nature of the security and accept such security, if satisfactory to all reasonable men. The legal duty of both parties in the matter of giving security is fixed with sufficient certainty to meet the requirement of the statute of frauds.
The evidence, without substantial dispute, discloses that by indorsement on the receipt the time of compliance was extended to April 1, 1924; that in June following the purchaser advised the vendor he was unable to meet the payments and demanded the return of his money. It further appears, without dispute, that when the receipt was drawn and delivered, the day following the payment of the $500 the justice of the peace who drew the receipt inquired whether, in case the purchaser failed to raise the money, the cash payment would be refunded, and assurance was given that it would.
Plaintiff relied upon this as evidence of contract to refund. This issue was submitted to the jury, with instructions to find whether this was a collateral contract made at the time, supported by the same consideration, or was a mere voluntary promise made after the transaction was closed. The land was the property of the wife; she and the husband joined in the receipt; the husband received and retained the money. The husband was the spokesman in making the promise to refund in the presence of the wife. The issue was further submitted to the jury as to whether this promise was binding on the wife. No questions upon the admissibility of this evidence, nor the instructions of the court thereon, are presented for review. The matter is adverted to here for its connection with other rulings to be considered.
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