Dobson v. Deason

• Citation: 248 Ala. 496,28 So.2d 418
• Decision Date: 19 December 1946
• Docket Number: 6 Div. 524.
• Court: Supreme Court of Alabama
• Parties: DOBSON et al. v. DEASON et al.

28 So.2d 418

248 Ala. 496

DOBSON et al. v. DEASON et al.

6 Div. 524.

Supreme Court of Alabama

December 19, 1946

R. G. Rdden, of Vernon, for appellants.

Chas E. Tweedy, Jr., of Jasper, and Young & Young, of Vernon for appellees.

FOSTER Justice.

This is a bill filed by appellants against appellees for the specific performance of a contract for the conveyance of certain described real estate. The court sustained demurrer to the bill as amended upon the ground as claimed in briefs that the contract is void under the statute of frauds.

The bill as amended described the lot in detail, and alleges that it is known as the Millport Motor Company property. It alleges that the contract between complainant and respondent is in writing, and it is copied in the amended bill, and is as follows:

'Received of T. T. Dobson, cashier's check for $100.00, to serve as binder on property, known as Millport Motor Company, at Millport, Alabama. It is stated that the purchase price is $7500.00, and that this $100.00 will be deducted from the above balance of the $7500.00, provided said $7400.00 is delivered to Bank of Vernon Alabama and made payable to J. H. Deason within five days from the time the said Bank of Vernon, receives a deed made to T. T. Dobson and R. L. Hydrick.'

The questions raised are whether or not the claim that the contract is void under the statute of frauds, Code 1940, Tit 20, § 3, can be presented by a demurrer, and, section, whether the writing sufficiently complies with the statute of frauds.

We do not agree with appellants' contention that the statute of frauds can never be raised by a demurrer to the bill of complaint. It is fully settled that when the bill of complaint shows upon its face that the contract was not in writing, or, if in writing, was not a sufficient compliance with the statute, a demurrer on that ground should be sustained. Johnson v. Maness, 232 Ala. 411, 168 So. 452; Conoly v. Harrell, 182 Ala. 243, 62 So. 511; Trammell v. Craddock, 93 Ala. 450, 9 So. 587; Brown & Sons Lumber Co. v. Rattray, 238 Ala. 406, 192 So. 851, 129 A.L.R. 526.

Since the bill of complaint states in haec verba the contract, it shows upon its face that it either is or is not in compliance with the statute of frauds, and a demurrer is appropriate to raise the question of whether it is a compliance.

The next contention is that it is in compliance with the statute of frauds, and therefore that the demurrer, while available, should not have been sustained on that ground.

We concur in this contention. The case of Matthews v. Bartee, 209 Ala. 25, 95 So. 289, 290, seems to be conclusive of that question. There the contract was in the form of a receipt similar to the one here set out, and it was held to be sufficient as a compliance with the statute of frauds, since the executed instrument contains 'The names of the parties, the subject-matter of the contract, the consideration and the promise.' Alba v. Strong, 94 Ala. 163, 10 So. 242; McCarty v. Harris, 216 Ala. 265, 113 So. 233.

The cases cited by appellees to the effect that the writing must contain facts sufficient to identify the land, and oral evidence of the intention of the parties is not admissible (Shannon v. Wisdom, 171 Ala. 409, 55 So. 102; Alba v. Strong, supra; Alabama Mineral Land Co. v Jackson, 121 Ala. 172, 25 So. 709, 77 Am.St.Rep. 46), do not in any repect militate against the rule that a general uncertain description can be made specific and certain by parol evidence of concurrent facts...