BEATTY, Justice.
These appeals are from an order (1) granting summary judgment in favor of
Norman H. Clark on his claim for breach of warranty of title; (2) granting summary judgment in favor of Cypress Shores Development Company, Inc. ("Cypress Shores") on Clark's claim for breach of contract; and (3) granting the alternative motion of Cypress Shores for summary judgment as to the issue of damages.
The pertinent facts were stipulated to by the parties and set out comprehensively by the trial court in its findings of fact, which we adopt herewith:
"Charles Shaw, a real estate agent acting for Norman Clark, contacted Cypress Shores Development about purchasing Lots 46 and 47 of Unit Four, Cypress Shores Subdivision in February 1980.
"An offer was made to purchase the same for $21,000, and was not accepted by Cypress Shores.
"The offer contained language requiring that the covenants be removed.
"A later offer was made for $22,500 and on June 20, 1980, Cypress Shores accepted the same. The condition of the purchase agreement was 'the owners having restrictive covenants removed so that the property may be used for commercial purposes and such document for removal to be recorded in the Office of Probate of Mobile County. Owners to have thirty (30) days from date of acceptance of this offer to fulfill this obligation.'
"...
"The purchase contract was prepared by Clark's real estate agent, Charles Shaw.
"Unit IV had been subdivided in early 1963 by Cypress Shores and the restrictive covenants appertaining thereto had been recorded on March 21, 1963. Pursuant thereto, Defendant Cypress Shores as the developer, by and through the Architectural Committee retained the right and power to amend or cancel all or any part of the restrictions at any time by an instrument executed by the said committee.
"Pursuant to said authority, on November 1, 1980, the Architectural Control Committee of Cypress Shores executed a document purporting to remove the restrictive covenants pertaining to Lots 46 and 47, so as to comply with the requirements of the purchase contract.
"The modification executed by the Architectural Control Committee of Cypress Shores was recorded on November 18, 1980, in real property book 2177, page 604 of the Probate Court Records of Mobile County, Alabama, and is hereinafter quoted in its entirety.
" 'Pursuant to the provisions of the instrument captioned "Covenants, Restrictions and Limitations" dated March 21, 1963, and recorded in real property book 406, pages 255-259 of the records in the Office of the Judge of Probate of Mobile County, Alabama, the Architectural Control Committee to which references [are] made in paragraph 3 of said instrument, acting by and through the undersigned Kenneth R. Giddens, Arthur Tonsmeire, Jr., and William Lyon, who comprised a majority of the members of such Committee, does hereby annul, cancel and modify the said instrument and all of the covenants, restrictions and limitations and requirements therein set forth insofar as they relate to lots 46 and 47 of Unit IV of the subdivision, plat of which is recorded in Map Book 14, Page 82 of said records, and the said instrument is hereby modified so as to effect such cancellation and annulment.' "
"On November 21, 1980, the closing of the sale of the said lots to Clark occurred. No representative of Cypress Shores was present.
"The Plaintiff received the document removing the restrictions from his real estate agent Shaw prior to the closing. The Plaintiff received the warranty deed dated November 13, 1980, at closing.
"The contents of the document and the purchase agreement contained the representations relied on by Clark concerning the removal of the restrictive covenants. No oral representations were made to Clark concerning the effect of the removal document. Clark and his employee, Vincent Dyal, testified that no discussions concerning the sale were had with any agent, servant or employee of Cypress Shores.
"The deed states in pertinent part:
" 'The property is conveyed subject to all existing utility and drainage easements and rights-of-way and zoning restrictions, as well as to the lien for current ad valorem taxes, which grantee assumes and agrees to pay when due, and to the following, specifically:
" 'To the exception and reservation hereinabove mentioned; to building set back line, drainage and utility easement, and all other matters shown on said plat; to easement granted Alabama Power Company by instrument recorded in real property book 538, page 834; to all other existing easements and rights of way, if any; to restrictive covenants as contained in instrument recorded in real property book 406, page 255, as modified by instrument recorded in real property book 2177, page 604, and to all matters of public record or visible on the ground, or that are shown or would be shown on an accurate survey of the property.
" '...
" 'Grantor covenants to and with the grantee that, except as to matters, exceptions and reservations above referred to, it is lawfully seized of said property, the same is free from other encumbrances, and it and its successors will forever warrant and defend the title to said property, as herein conveyed, unto the said grantee, and unto the heirs, successors and assigns of grantee, against the lawful claims of all persons, whomsoever.
" 'All recordations mentioned herein refer to the records in the office of the Judge of Probate Court of the County in which the above property is located, [Mobile County] unless otherwise indicated.' "
"By late November 1980, Clark had commenced construction on the lots.
"Thomas Deas, attorney for the residents of Cypress Shores, contacted Charles Street or Calvin Clay, attorneys for Clark, in mid-November 1980 expressing concern over the apparent commencement of construction of the convenience store on residential lots in the subdivision, and inquiring as to whether any authority or permission existed therefor.
"On November 19, 1980, Calvin Clay, attorney for Clark, wrote to Mr. Deas in response to his inquiry and enclosed a copy of the covenants and removal document and advised that authority existed to construct the store on the lots in question.
"On November 24, 1980, Deas wrote a letter jointly to Calvin Clay and to Vivian G. Johnston, Jr., a stockholder of Cypress Shores Development, enclosing a copy of the complaint for injunction and requesting that Clark cease further building activity on the lots.
"The actual complaint was filed on November 25, 1980, the next day.
"Clark was served December 5, 1980.
"At the date of the hearing on the injunction before Judge Hogan, on December 18, 1980, improvements limited only to the sitework had been done.
"The sum of $13,671 was spent on sitework for the building, although when the expenditures occurred is a matter of dispute.
"On November 28, 1980, Clark paid $2,317.00 of the sitework cost to G.B. Moore for fill dirt and haul off of excavated dirt. On the invoice no date for the work [was specified, although the Plaintiff's contractor, Terry Whitney, testified that the work was] done a day or so prior thereto. On December 5, 1980, Clark paid Moore $6,076.00 for fill dirt and haul off of excavated dirt. The invoice stated that the date for the work was ... November 28 to December 4, 1980. On December 10, 1980, Clark paid Moore a statement of $3,577.00 for work done from December 4 to December 10, those invoices total $11,970.00.
"Other sitework was added later. On March 27, 1981, fill and was provided by [sic] Frank Jordan Construction Co., for which Clark paid $1,592.00.
"Prior to the hearing on December 18, 1980, concerning sitework, in addition to payments to Moore, Clark had paid his
contractor Terry Whitney on December 5, 1980, for sitework labor incurred the preceding four days. At the date of the hearing, Clark had paid Moore $11,970.00.
"Judge Hogan denied the request for injunction on December 24, 1980. On that date, the Plaintiff residents filed Motion for Grant of Injunction pending the appeal which Judge Hogan granted on January 5, 1981, and required them to post a $50,000 bond which they failed to do. The appeal to the Supreme Court of Alabama was filed by the residents on February 3, 1981. The case was one of first impression with the Court, there being no previous decision specifically invalidating the use of such power for that purpose.
"Completion of construction of the store was then commenced by Clark.
"The slab was poured on February 19, 1981, and the footing was poured several days earlier. The concrete blockwork was done prior to February 20, 1981.
"The cost of the building and improvements excluding the sitework was $55,241.07.
"The building was completed and opened March 26, 1981.
"The store was operated continuously thereafter until closed.
"Clark placed a mortgage on the property on March 31, 1981, with American National Bank in the amount of $104,000.00....
"Clark leased by oral agreement the building to his corporation, Complete Package Food Stores, Inc., of which he owned 100% of the stock, for $3,200.00 per month.
"On April 30, 1982, the Supreme Court of Alabama in the case styled Wright v. Cypress Shores Development Co., Inc., 413 So.2d 1115 (1982), reversed the decision of the trial court and remanded a case for further proceedings not inconsistent with its opinion.
"On January 19, 1983, Judge Robert Hodnette, Jr., ordered among other things that operation of the store cease. The store was closed on or about April 28, 1983. On that day, Clark filed the subject...
