Fullenwider v. Rowan

• Court: Alabama Supreme Court
• Writing for the Court: HARALSON, J.
• Citation: Fullenwider v. Rowan, 136 Ala. 287, 34 So. 975 (Ala. 1903)
• Decision Date: 28 February 1903
• Parties: FULLENWIDER v. ROWAN ET AL. [a1]

34 So. 975

136 Ala. 287

FULLENWIDER v. ROWAN ET AL. ^[a1]

Supreme Court of Alabama

February 28, 1903

Appeal from City Court of Anniston; Thos. W. Coleman, Jr., Judge.

Action by A. L. Fullenwider against John F. Rowan and others for breach of contract for the sale of land. From a judgment in favor of defendants, plaintiff appeals. Reversed.

The complaint originally filed contained four counts. The demurrers to the first, second, and fourth counts were overruled, and therefore, for the purpose of this appeal, it is unnecessary to set out these counts at length. The third count as originally filed was in words and figures as follows: "Third Count. Plaintiff claims of the defendants the further sum of thirty thousand dollars, for that heretofore, to wit, on the 15th day of June, 1900, at Jacksonville, in said county and state, the defendants made and entered into a written contract with plaintiff, in words and figures as follows, to wit: 'State of Alabama Calhoun County. Know all men by these presents that we, W. H Dean, Walter Dean, George H. Rowan and John F. Rowan, for and in consideration of the sum of five hundred dollars to us in hand paid by A. L. Fullenwider, the receipt whereof we do hereby acknowledge, we do hereby promise and agree to sell and convey to the said A. L. Fullenwider, his heirs executors, administrators, or to any person to whom he may transfer or assign this instrument at any time within sixty (60) days from the date hereof, upon the further payment by him, his heirs or assigns, to us of nineteen thousand five hundred dollars cash, the following property, viz.: [Here follows description of property.] It is expressly understood between the parties to this instrument, their heirs and assigns, that the option hereby conveyed to the said A. L Fullenwider to purchase the above partially described property at the price herein designated, shall not extend beyond the time herein named, and if the said A. L Fullenwider, his heirs or assigns, shall tender to us the said sum of nineteen thousand five hundred dollars, cash, at any time within sixty (60) days from the date hereof, we promise, agree and bind ourselves to sell and convey to him or to his assigns, or heirs the above partially described property, by deed, with covenants of warranty against ourselves and our heirs. And if the said A. L. Fullenwider, his heirs or assigns, shall not tender or offer to pay the said sum of nineteen thousand five hundred dollars cash, by the time named in this instrument, then this option contract shall be null and void and of no effect.' " (Then follow stipulations as to furnishing abstracts in case of purchase under option and as to rents, etc.) (Signed by defendants.) "And plaintiff avers that upon the execution of said contract he paid to said defendants the said sum of five hundred dollars, as provided in said contract, and plaintiff avers that thereafter, on, to wit, the 17th day of July, 1900, he paid the said defendants the further sum of seven thousand five hundred dollars, and said defendants then and there in consideration of said payment made a further and additional contract in writing in respect to said lands referred to in said contract first hereinabove mentioned in words and figures as follows, to wit: 'Received of A. L. Fullenwider the sum of $7,500.00 on account of purchase price named in the within option, making in all the sum of $8,000.00 paid by him on account of the purchase money, and in consideration of the payment we do hereby agree to extend the time for the payment of the balance of the purchase money for the period of twelve months from this date, with interest thereon at six per cent. per annum, and do hereby agree that the said Fullenwider may at any time pay the balance of the purchase money with interest then due, and that we will, upon payment being made, execute to him the titles according to the terms of this option. Jacksonville, Alabama, July 17th, 1900.' " (Signed by defendants.)

To this original third count of the complaint the defendant demurred upon several grounds, which may be summarized as follows: (1) For that it appears from said count that the balance of the purchase money was to have been paid within twelve months from July 17, 1900, the date of the new and second contract, and the plaintiff did not demand deed from defendant or tender or offer to pay the balance of the purchase money within said twelve months from July 17, 1900. (2) For that it appears from said count that plaintiff did not comply with the contract of July 17, 1900, in that he did not tender or offer to pay the balance of the purchase money within twelve months from that date, and did not demand a deed within twelve months from said date. (3) For that it appears from said contract of June 15, 1900, and July 17, 1900, set out in said third count, that the time for payment for the purchase money was the essence of the said contract for the sale of the lands, and that the balance of the purchase money was to have been paid by said Fullenwider within twelve months from July 17, 1900, and that plaintiff never offered to pay the balance of the said purchase money until November 21, 1901, or more than twelve months after July 17, 1900, and never tendered the said deed to the defendants to execute within the twelve months from July 17, 1900. (4) For that it does not appear from said count that there was any mutuality of sale or contract of sale in the contract sued on, or that it was mutually binding on plaintiff and defendants to purchase and sell at the time it is alleged that plaintiff caused a deed to be prepared and tendered to defendant for their execution or at any other time. (5) For that it does not appear that there was any written agreement made by defendants to convey the property mentioned therein to the plaintiff which was accepted by him, or that plaintiff in any wise ever bound himself to pay to defendants any sum of money or anything else for said property. (6) For that it appears from said count that plaintiff did not bind himself to pay anything for the property mentioned therein, and did not bind himself to accept the offer of the defendant to sell and convey said property; that the agreement of the 15th of June and 17th of July, 1900, in said count set forth was unilateral merely, and required plaintiff to avail himself of the benefit of it by accepting and complying with its terms within twelve months from the 17th of July, 1900; the plaintiff did not so avail himself of the benefits of said optional agreement, or make any effort to do so within the time therein specified; that said time or times were the essence of said agreements, and that plaintiff has not brought himself within the influence of their "saving grace." (7) For that said count shows that there never was any contract entered into by these defendants with this plaintiff for the sale of the lands mentioned therein, that is enforceable in law forum, or that would entitle either party to recover damages in a suit at law for a breach thereof.

These demurrers were sustained, and thereupon the plaintiff amended the third count by inserting immediately after the contract of July 17, 1900, and before the words "and plaintiff avers that on, to wit, the 21st day of November, 1900," etc., the following averments:

"And plaintiff alleges that within twelve months after the 17th day of July, 1900, on, to wit, the 13th day of July, 1901, the defendants consented and agreed to extend the time within which the balance of said purchase money was to be paid for three months from and after said 17th day of July, 1901, and plaintiff avers that after the expiration of said three months from and after said 17th day of July, 1901, the defendants, with full knowledge that the balance of said purchase money had not been paid by the plaintiff, treated said contract as subsisting and entered into negotiations with plaintiff as to the form of the deed which defendants should execute in execution of said contract, and afterwards, on, to wit, the 4th day of January, 1902, defendants expressed a willingness to execute a conveyance to plaintiff for an undivided seven-eighths interest in and to the property described in said contract in satisfaction of said contract, if plaintiff would then and there, on, to wit, the 4th day of January, 1902, or within a reasonable time thereafter, pay the said defendants the sum of $12,805, which defendants claimed to be the balance then due under said contract. And plaintiff further avers that said defendants waived the breach of said contract by plaintiff, if any such breach existed, in the nonpayment of the balance of said purchase money within the time limited by said contract, or the time to which it was extended as aforesaid."

The plaintiff also amended his complaint by adding additional counts Nos. 5, 6, 7, 8 and 9. Demurrers to the seventh and eighth were overruled, and for that reason it is unnecessary to set out these counts at length. The fifth, sixth and ninth counts were in words and figures as follows:

"Fifth Count. Plaintiff claims of the defendants the further sum of $30,000, and for cause of actions refers to and adopts the language of the third count of the complaint, down to and including the contract of July 17, 1900, as therein set forth, and adds thereto the following: And plaintiff further avers that the defendants extended the time within which the balance of said purchase money was to be paid for three months from and after said 17th day of July, 1901, and waived the breach of said contract by the nonpayment of said balance of purchase money within the time limited, if there was such breach, by treating said contract as still subsisting, and entering into negotiations with the plaintiff in

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