Cofield v. McGraw & Garner

• Decision Date: 05 February 1918
• Docket Number: 8 Div. 544
• Citation: 16 Ala.App. 369,77 So. 981
• Parties: COFIELD v. McGRAW & GARNER.
• Court: Alabama Court of Appeals

77 So. 981

16 Ala.App. 369

COFIELD v. McGRAW & GARNER.

8 Div. 544

Court of Appeals of Alabama

February 5, 1918

Appeal from Circuit Court, Franklin County; C.P. Almon, Judge.

Action by McGraw & Garner, a partnership, against J.W. Cofield, in assumpsit. Judgment for plaintiff, and defendant appeals. Affirmed.

The first count claims of defendant $62.40 due from him by account on or about September 14, 1916, for services rendered defendant by plaintiff as real estate agents, which is just due, and unpaid. (2) Plaintiff claims of defendant the sum of $62.40, damages for the breach of a contract entered into by him on July 24, 1916, in substance as follows: Plaintiff agreed in said contract to obtain or arrange a sale of defendant's land at and for the sum of $1,550, and defendant agreed in said contract to execute title to the purchaser of said land, and to pay plaintiff 4 per cent. of the purchase money, and plaintiff alleged it performed its part of said contract, and obtained a purchaser for said land, who was then and there able, ready, and willing to buy at said price and terms for sale, and plaintiff further alleged that defendant breached its said contract and agreement in this, that he failed and refused to execute title to said land, and failed and refused to pay plaintiff the said commission, and still refuses to pay same. Plaintiff alleges it performed all its duties under the terms of said contract, but defendant has failed to comply with his said contract.

The demurrers were that the complaint stated no cause of action. For aught that appears defendant had no right to execute title to said land, or had no title to said land. It is not shown that defendant had any land about which he could contract. It is not alleged that the money was offered to said defendant for said land. No facts are alleged which show any duty on the part of defendant to execute a conveyance to said lands. There is nothing alleged which shows a valid contract by defendant on which this suit is found. The following is plea 6:

Said alleged contract here sued on is void in this, that the said lands listed therein with plaintiff for sale is the homestead of this defendant; that his wife is living, and defendant, together with his said wife, reside on said land as his homestead, and so resided thereon on the date when said alleged contract purported to have been executed defendant's said wife did not sign said alleged contract and did not acknowledge same separate and apart from her said husband, as directed in the statutes for the alienation of homesteads, and said lands described in said alleged contract is not in area

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