Dexter v. Ohlander

• Decision Date: 21 May 1891
• Citation: 9 So. 361,93 Ala. 441
• Parties: DEXTER v. OHLANDER.
• Court: Alabama Supreme Court

9 So. 361

93 Ala. 441

DEXTER v. OHLANDER.

Supreme Court of Alabama

May 21, 1891

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Action by August Ohlander against R. P. Dexter to recover upon the following contract: "Montgomery, Ala., August 24th 1887. I have received from Mr. A. Ohlander relinquishment to his lease with L. Lowell for consideration of $150, to be paid him in ten days, and use of the premises until Nov. 1st 1887, free of rent. [Signed] R. P. DEXTER." From a verdict and judgment for plaintiff, defendant appeals.

Thorington & Smith, for appellant.

E. P. Morrisette and Watts & Son, for appellee.

STONE C.J.

This is the second appeal in this case. Dexter v. Ohlander, 89 Ala. 262, 7 South. Rep. 115. When the case was tried a second time in the circuit court, the rulings were in strict accord with the principles declared by this court on the former appeal. We are asked to reconsider and reverse what was then said.

On the former appeal it was said "that the whole purpose and effort of the defendant [Dexter] was to get the lease out of the way, so that a sale might be effected, either by him as the agent of the owner, or to him as the agent as well as one of the syndicate; and the contract which he induced the plaintiff to enter into had the desired effect of removing the outstanding lease, and possession under it, out of the path of the pending negotiations." This is a true summation of the transaction in its legal bearings, whether we view it from the stand-point of the writings alone, or aided by the surrounding circumstances. Ohlander was in possession of the premsies under a five-years lease. He bound himself to surrender that possession and the lease, the possession to be surrendered November 1st next afterwards, in consideration of $150, to be paid to him within 10 days after the making of the contract, August 24, 1887. Not a word of condition is expressed in the writings. The money, $150, was to be paid to Ohlander in 10 days, and he was to surrender possession, and all right to possession, in a little over 2 months; and he kept his promise, and surrendered the possession. Is he to lose the benefit of his lease, and get no compensation for it? A written assurance was given him that for the surrender of his lease he was to be paid $150 in 10 days. By whom to be paid? Dexter signed the writing, and it gives no indication that he was contracting as agent. If he was agent of any one, it is not shown in the writing. Even if his intention had been to bind another as his principal, he failed to express that intention, and thereby bound himself. Wood v. Brewer, 73 Ala. 259; Belisle v. Clark, 49 Ala. 98; Jones v. Morris, 61 Ala. 518.

It is contended for appellant that the attendant facts-the surrounding circumstances attending the making of the written agreement in this case-show that Dexter did not bind, and did not intend to bind, himself personally to pay the $150. What were the...