Ezzell v. S.G. Holland Stave Co.

• Decision Date: 24 January 1924
• Docket Number: 8 Div. 514.
• Citation: 99 So. 78,210 Ala. 694
• Parties: EZZELL v. S. G. HOLLAND STAVE CO.
• Court: Alabama Supreme Court

99 So. 78

210 Ala. 694

EZZELL v. S. G. HOLLAND STAVE CO.

8 Div. 514.

Supreme Court of Alabama

January 24, 1924

Rehearing Denied Feb. 14, 1924.

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

Bill in equity by the S. G. Holland Stave Company against John T Ezzell, for specific performance of a contract to purchase timber. From a decree for complainant, Gertrude Ezzell, as executrix of the estate of John T. Ezzell, now deceased appeals. Reversed and rendered.

Kirk &amp Rather, of Tuscumbia, for appellant.

Wm. L. Chenault, of Russellville, for appellee.

GARDNER J.

The S. G. Holland Stave Company, a corporation, filed the bill in this cause against John T. Ezzell, seeking the specific performance of an alleged contract on the part of said Ezzell to purchase from the complainant certain 1,600 acres of standing timber situated upon lands in Colbert county, Ala.

The cause being submitted for final decree upon pleadings and proof, the testimony being taken by deposition, the trial court reached the conclusion that the complainant was entitled to the relief sought, decreed specific performance of the contract, and gave judgment for the purchase money. To review this decree the appeal is prosecuted.

The contract here sought to be enforced is evidenced by letters only, and it is strenuously insisted by counsel for appellant that the statute of frauds is a complete answer to this cause, in that the writings nowhere describe the property, and, further, that the letters, themselves, properly construed, only disclose a "treaty pending and not a contract concluded." The transaction here sought to be enforced originated from a personal conversation had between Ezzell and representatives of the stave company. In this conversation the price was fixed at $1 per acre. Either at the time of the interview or a few days subsequent a memorandum was made as to the description of the timber copied from the deeds then exhibited, which memorandum has been lost. It contained no signature or any other writing save a notation of the description. The first writing concerning the purchase is found in the letter of September 5, 1919, written by Ezzell. This letter, together with the other correspondence which appears material to this controversy are set out in the report of the case. The timber was referred to in the letter of September 5th as "the 1,600 acres of timber that we were speaking about last Monday morning in your office," and on September 8th thereafter the stave company, in acknowledging receipt of this letter, referred to the timber as "our timber that we were talking about." The letter written by Ezzell on September 9th, in response to that of the stave company of September 8, likewise contains no description of the timber, merely referring to it as "the 1,600 acres of timber land." There is evidence to the effect that complainant owned other timber lands in Colbert county at that time.

Upon subsequently inspecting the timber in company with an agent of the stave company, Ezzell declined to purchase, and so notified the agent, and in answer to other letters so wrote the stave company on November 2, 1919. On November 17, 1919, the stave company forwarded to a bank at the home of the respondent a duly executed deed with draft attached for $1,600, the deed to be delivered upon payment of the draft. Respondent declined to receive the deed and pay the draft; hence this litigation.

It is of course not to be controverted that the letters themselves contain no sufficient description of the property, the subject-matter of the entire transaction, but the reference is only to the timber the parties had been "talking about." There is, therefore, no foundation for the application of the maxim, "Id certum est quod certum reddi potest," as was recognized and enforced in the authorities cited by counsel for appellee, among them Meyer Bros. v. Mitchell, 77 Ala. 312; Meyer Bros. v. Mitchell, 75 Ala. 475; Angel v. Simpson, 85 Ala. 53, 3 So. 758; Howison v. Bartlett, 141 Ala. 593, 37 So. 590; Nolan v. Henry, 190 Ala. 540, 67 So. 500, Ann. Cas. 1917B, 792; Minge v. Green, 176 Ala. 343, 58 So. 381; Daniel v. Wade, 203 Ala. 355, 83 So. 99.

Nor can resort be had to the memorandum description above noted, so as to supply this fatal deficiency. No reference thereto is found in any of the letters, nor is there anything in the correspondence indicating in the least that this memorandum has any relation to the contract, as is insisted was established thereby.

In Alba v. Strong, 94 Ala. 163, 10 So. 242, this court said "The following propositions must be regarded as settled by the former decisions of this Court beyond controversy: First. That to authorize the specific enforcement of an agreement to sell land all the terms of the agreement must have been agreed on, leaving nothing for negotiation. Second. That all the terms of the agreement, viz., the names of the parties, the subject-matter of the contract, the consideration and the promise, must be in writing, signed by ...