Gainer v. Jones

• Decision Date: 11 April 1912
• Citation: 58 So. 288,176 Ala. 408
• Parties: GAINER ET AL. v. JONES.
• Court: Alabama Supreme Court

58 So. 288

176 Ala. 408

GAINER ET AL. v. JONES.

Supreme Court of Alabama

April 11, 1912

Appeal from Chancery Court, Geneva County; L. D. Gardner Chancellor.

Bill by Henry Jones against W. H. Gainer and others for specific performance. Decree for complainant, and respondents appeal. Affirmed.

The decree of October 21, 1909, referred to in the opinion, is as follows: "Upon consideration, the court is of the opinion that complainant is entitled to the relief he seeks and that a reference is necessary to be held. It is therefore ordered, adjudged, and decreed that complainant is entitled to relief. It is further ordered that the register of this court hold a reference in this cause at such time as suits his convenience, and of which he will give due notice to the parties to this cause, and state an account between complainant and W. H. Gainer & Co., and W. H. Gainer & Bro and ascertain and report to the court what balance is due by complainant to W. H. Gainer & Co., or W. H. Gainer & Bro., or both of said firms, under said contract, showing whatever payments had been made by complainant to which he is entitled to credit on the contract, and what is due by complainant to said firms, or either of them, what said balance is, the amount of said balance, at the date of his said report. He will calculate interest according to the rule of partial payment as prescribed by law. The register may use on said reference any testimony which has been taken in this cause together with such other evidence as may be offered by either party. The register will make his report to this court at the term following the holding of said reference. All other matters are reserved."

The decree of May 18th, referred to in the opinion, is as follows: "In the former decree in this cause it was adjudged and decreed that complainant was entitled to relief. Upon the reading of this decree, it appears to be a final decree, in so far as settling the equity of complainant and his right to relief, and it may be seriously doubted as to whether or not this could now be altered in that respect. I have taken occasion, however, to carefully review this decree, and all the evidence in this cause, and am still convinced that the complainant had made out his case, entitling him to specific performance. In the former decree, I stated as my opinion that complainant should be required to pay whatever amount he was due by account to Gainer & Co. as a condition precedent to relief. Looking to this end, a reference to the register was ordered for ascertainment of such amount. Upon this submission, counsel for complainant urges that such condition is beyond the contract, and in effect seeks a review of that conclusion, and a reversal of the position I then took. It is insisted that the purchase price was fixed at $1 per acre, and that to require the payment of the store account would be to increase the purchase price just that much, and that the agreement to credit complainant on purchase price on whatever balance might be found to be due him on monthly settlements was a mere manner of payment for convenience of the parties, but that the purchase price remained the same, $1 per acre. Complainant cannot be compelled, as a condition to obtaining specific performance to discharge a claim against him growing out of an entirely distinct action, or not connected with the subject-matter of the suit. 36 Cyc. 755; Knight v. Luke, 69 Ala. 423; Pulliam v. Owen, 25 Ala. 492; Sims v. McEwen's Adm'r, 27 Ala. 184; Byrd v. Odem, 9 Ala. 755. There is no evidence that this condition was a part of the contract of sale between the parties. Upon a careful consideration of this phase of the case, I have become convinced that I was in error expressed in the former decree, and in ordering such a reference. My conclusion upon the former submission was that complainant was discharged without cause, as expressed by me at the time. In addition, respondent Gainer does not seem to have continued in the milling business there for a very great while after complainant quit the service. Upon the whole evidence, it cannot be said that complainant, without cause, quit the service. It cannot be said that complainant placed himself in such position to continue to work out the purchase price in the manner agreed. If correct in this case, then clearly he would be entitled to his conveyance upon the payment of the balance due on the purchase price. By requiring him to pay the store account in addition, part of which seems to have begun some time before the land trade was made, would, I am convinced, be adding that to the contract which the parties had not put into it, and this I have no right to do. If respondents placed themselves in such position, or placed complainant in such position, that he could not continue in the service, making the payment by way of credit for any balance found due him, then it seems to me the balance in money of the purchase price suffices to meet the contract of the parties. Others seem to have paid taxes on the land. The register has not reported this amount of taxes paid. The taxes should be required to be paid by complainant. It is therefore ordered that the register hold a reference in this cause, and ascertain what is the balance due by complainant on the purchase price of the land as shown by the evidence in this cause. He will give complainant credit for any payments or credit to which he is entitled by way of any balance found due the complainant on any monthly settlement with W. H. Gainer & Co., or W. H. Gainer & Bro., or otherwise, and calculate interest on such balance found to be due by complainant to date of his report at the rate of 8 per cent. per annum. He will also ascertain the amount of taxes paid by the respondents Gainer, or their vendee, and any of the respondents of said cause, and calculate interest on the same at the legal rate. He will use on said reference any evidence heretofore taken in this cause in any manner, and any other evidence either of the parties desire to introduce on said reference, and will make his report on the first day of the next term of this court."

W. O. Mulkey, of Geneva, for appellants.

C. D. Carmichael, of Geneva, for appellee.

SIMPSON J.

The original bill, which has been eliminated, and the amended bill in this case, were filed for the specific performance of a contract for the sale of land; it being alleged and claimed that the complainant (appellee here) went into possession of the land under a parol contract of sale and paid part of the purchase money. Several subsequent purchasers of the land were made parties defendant, with the original vendors. This case was before this court at a previous term, from a decree dismissing the bill for want of equity, which decree was reversed, and a decree was here rendered overruling the motion to dismiss; this court holding that though an agent, in delivering the possession of the land, acted upon the oral authority from the principal, without authority, followed by an oral ratification, the contract was valid (overruling the case of Elliott v. Bankston, 45 So. 173); also, that "where a purchaser of land, under a verbal contract, takes and retains possession of the premises, with the vendor's consent, his mere delay in bringing suit for specific performance or his failure to pay the purchase money will not constitute a bar to the suit, where he has never been put in default by any act of the vendor." Jones v. Gainer, et al., 157 Ala. 218, 47 So. 142, 131 Am. St. Rep. 52.

On October 21, 1909, the chancellor rendered a decree accompanied by an opinion. In the opinion he states that he is convinced that the purchase of the land was made as claimed in the bill, that the complainant was placed in possession of the land, and paid a part of the purchase money, that he was entitled to certain credits on the purchase money, that complainant has been in adverse possession ever since the purchase, open and notorious and sufficient to put purchasers on notice, so that the subsequent purchasers cannot claim to be innocent and without notice. The chancellor also expresses the opinion that the testimony, by complainant, that deed was to be made when all the members of the firm came to the mill, is not inconsistent with the...