Citronelle Turpentine Co. v. Buhlig

• Decision Date: 18 December 1913
• Citation: Citronelle Turpentine Co. v. Buhlig, 184 Ala. 404, 63 So. 951 (Ala. 1913)
• Parties: CITRONELLE TURPENTINE CO. v. BUHLIG.
• Court: Alabama Supreme Court

63 So. 951

184 Ala. 404

CITRONELLE TURPENTINE CO. v. BUHLIG.

Supreme Court of Alabama

December 18, 1913

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Billby Hiram W. Macon and Milton C. Skinner, partners, as the Citronelle Turpentine Company, against W.H. Buhlig.Decree for respondent, and complainants appeal.Affirmed.

The receipt referred to in the opinion is as follows "Received of Citronelle Turpentine Company $100.00 as part payment on turpentine leases on the following land situated in Mobile county, Alabama [[here follows description of 2,522 acres by government subdivision], balance of $1900.00 to be paid upon delivery of a properly executed lease to run three years from Dec. 1, 1911, said payment to be made and lease delivered not later than Dec. 1, 1911; said lease to be approved by Mr. George Kilborn, secretary of the Alabama Land & Development Company.[ Signed.]W.H. BuhligTrustee."

R.P. Roach, of Mobile, for appellants.

L.H. & E.W. Faith, of Mobile, for appellee.

ANDERSON J.

In order for a complainant to procure the specific performance of a contract through a court of equity, he must show a contract that is specific, certain and complete.He cannot set up one contract and then procure the performance of another.If he contends for a certain contract as having been made between the parties, but which was not complied with by the respondent, he cannot procure the court to make a new or different contract from the one contended for by him, in order to get a specific performance of some contract, regardless of whether or not it was the one contended for by him as the real contract.In other words, the appellant contended for and presented a certain lease as the embodiment of the true and real contract between the parties, but which was not such a lease as would be approved by Kilborn, and it did not have the right to change the contract from the one originally made so as to bring it within the approval of said Kilborn, and then procure a specific performance by the respondent of a lease different from the one contended for and demanded by the said complainant.Gachet v. Morton,61 So. 817;Homan v. Stewart,103 Ala. 654, 16 So. 35.

The receipt in question provides that "the lease" was to be approved by Kilborn, who was the agent of the respondent's vendor, and who had considerable interest in the subject-matter.This meant, not only a consent to lease but that Kilborn would approve the...