Ford v. St.

• Decision Date: 17 March 1921
• Citation: 106 S.E. 379
• Parties: FORD. v. STREET et al.
• Court: Virginia Supreme Court

106 S.E. 379

FORD.

v.STREET et al.

Supreme Court of Appeals of Virginia.

March 17, 1921.

Appeal from Circuit Court, Nottoway County.

Suit by J. A. Street against Culvln Ford and others. Decree for plaintiff, and named defendant appeals. Affirmed as amended.

W. Moncure Gravatt and L. S. Epes, both of Blackstone, for appellant.

H. H. Watson, of Creive, and T. F. Epes, of Blackstone, for appellees.

PRENTIS, J. This is an appeal from a decree requiring the appellant specifically to perform a contract for the sale of real estate. The pertinent facts are these: On September 6, 1919, the appellant gave an option in writing to J. A. Street, the appellee, which reads thus:

"Agreement made this 6th day of September, 1919, by C. Ford, of the town of Burkeville, party of the first part, and J. A. Street, of the town of Burkeville, party of the second part.

"Witness: That the said party of the first part has agreed to sell the said party of the second part, J. A. Street, his tract of land in the town of Burkeville, containing about seven acres, more or less, at the corner of Namozine avenue and Harris Spring road, for the sum of $10,000, terms to be arranged on or before the 17th day of September. In consideration of $1 as an option, cash in hand, paid to the party of the first part, receipt of which is hereby acknowledged, said C. Ford agrees to deliver the said premises to the said Street on or before the 17th day of September, 1919."

Eight days later, September 14th, the dwelling house and its contents were totally destroyed by fire. The appellee had not exercised his right to close the option at that time, and on September 16th the vendor wrote at the bottom of this agreement: "This option is extended for 60 days." On the same date the parties concluded an agreement for the sale of the property, then consisting of a vacant lot upon which the improvements had been destroyed, and this agreement reads thus:

"This agreement made this 16th day of September, 1919, by C. Ford, of Burkeville, Va., party of the first part, and J. A. Street, of Burkeville, Va., party of the second part.

"Witnesseth: That the said party of the first part agrees to sell and the said J. A. Street agrees to buy, a certain tract of land lying and being in the town of Burkeville at the corner of Namozine avenue and Harris Spring road, containing seven acres, more or less, for the sum of $10,000, payable as follows:

"$100 cash in hand paid to the said party of the first part by the said J. A. Street, the receipt of which is hereby acknowledged, and the sum of $8,000 payable by and when the insurance is collected for the fire which destroyed the residence on the 14th day of September, 1919, and on the 1st day of October, 1919, upon the delivery of a good and sufficient deed of conveyance and abstract of title to the said property, said Street agrees to pay the remainder of the $10,000 not paid by the insurance company, making the total sum of $10,000 to the said party of the first part when the property is fully paid for."

Before this contract of sale was executed, each of the parties had separately inquired of the insurance agent with whom the policies of insurance had been placed as to the precise amount of the insurance upon the buildings, and each was explicitly informed that it was $8,000. The appellant testified that he had directed $8,000 to be written upon the buildings and $4,000 upon the furniture. Shortly afterwards it was discovered that instead of the $12,000 insurance being thus apportioned there was $9,000 upon the buildings and $3,000 upon the furniture. It also developed that the wife of the vendor refused to unite in the deed which her husband had contracted to execute to the vendee, and thereupon the vendor repudiated the contract.

The vendee filed his bill, agreeing to accept a deed for the property without thewife's signature and without demanding any abatement of the purchase price. It is claimed for the vendor that he is not bound to perform the contract of sale because of its uncertainty. We think, however, that a careful consideration of the pertinent facts shows that the only uncertainty which exists is the mistake or uncertainty as to the amount of insurance. We find no such uncertainty in the terms and conditions of the sale. When the contract was entered into, the buildings had been destroyed. The vendee was not undertaking to buy an assignment of the insurance policies. The contract related to the vacant lot, and, as we construe the testimony, it is sufficiently clear and definite to justify the decree of the trial court requiring the vendor to convey the property.

In order properly to construe every agreement, it is the duty of the court, as nearly as may be, to place itself in the position of the parties, and from this point of view no fair doubt arises out of the language used in this contract. Each of the parties clearly understood that of the $10,000 which the vendor was to receive thereunder, $8,000 was to come from the proceeds of the insurance policies and $2,000 was to be paid by the vendee.

One clause of the contract appears to us conclusive on this point. After acknowledging the payment of $100 in cash it recites that the sum of $8,000 is "payable by and when the insurance is collected for the fire which destroyed the residence on the 14th day of September, 1919."

The clause which is relied on for the contrary view...