Homan v. Stewart

• Decision Date: 20 June 1894
• Citation: 103 Ala. 644,16 So. 35
• Parties: HOMAN v. STEWART.
• Court: Alabama Supreme Court

16 So. 35

103 Ala. 644

HOMAN v. STEWART.

Supreme Court of Alabama

June 20, 1894

Appeal from city court of Anniston; James W. Lapsley, Judge.

Bill by D. A. Stewart against Russell Homan. From a decree for complainant, respondent appeals. Affirmed.

The bill in this case was filed on March 4, 1892, by the complainant, D. A. Stewart, against Russell Homan; and sought the specific performance of an alleged contract of sale between the complainant and the defendant. It was averred in the bill, and shown by the evidence of the complainant, that on April 2, 1890, the complainant, with five others, formed a syndicate, and purchased of the Shelby Manufacturing &amp Improvement Company, five lots in the town of Shelby, Ala. That it was agreed among the members of said syndicate, that Ed. T. Witherby, one of their number, should be trustee, and receive from each of said members his share for the cash payment of said lots; that the said Witherby, as trustee paid the purchase price for said lots, and the company put the purchasers in possession. On the day above stated, the complainant paid his share of the purchase price of said lots, and received from said Witherby a receipt in words and figures as follows: "Received, Shelby, Ala., April 2d 1890, of the Shelby Iron Company, five hundred and fifty-two and 09/100 dollars, it being the one-sixth cash payment of the syndicate purchase for lot No. 1, block 89, lot 2, block 89, lot 2, block 91, lot No. 14, block 92, lot 30, block 95, $552.09. Ed. T. Witherby, Trustee." The bill contained the further averment in reference to this receipt: "Orator further avers that said receipt was written on a blank on which was printed the words, 'Shelby Iron Company,' and which words should have been erased, and orator's name substituted, in order to make out the full meaning and intent of said receipt; that it was intended by said Witherby as a receipt for money from orator, and not from the Shelby Iron Company, as it purports on its face; that orator, and not the Shelby Iron Company, paid the said $552.09 to said Witherby, trustee aforesaid." The defendant being the owner of a certain lot in the city of Anniston, known as lot No. 1 in block 2, which he valued at $1,200, traded said lot to the complainant for his interest in the lots purchased from the Shelby Manufacturing & Improvement Company, which interest was valued at $1,100; that in accordance with the agreement of transfer and sale, the complainant paid to the defendant $100 in cash, and delivered to him the receipt given to said Witherby, with the following indorsement upon it: "I hereby transfer my interest in the within described property to Russell Homan, April 9, 1890. D. A. Stewart;" and that thereupon the said respondent gave to the complainant the following receipt: "Anniston, Ala., April 9, 1890. Received of Dr. D. A. Stewart one hundred dollars in cash, and interest in certain city lots at Shelby, Alabama, valued at eleven hundred dollars ($1,100.00), in consideration for warranty deed of my lot on west side of Wilmer street, between Eleventh and Twelfth streets, and thirty-five feet on Wilmer, and running back 100 feet to an alley. Russell Homan." The said complainant averred in his bill, and testified in his deposition, that upon the delivery of these respective receipts, the said respondent placed him in possession of the lot, and agreed to execute to him a warranty deed, conveying the said lot in Anniston. This deed was never executed, and the present bill was filed to compel the execution of said deed to the complainant. The defense set up by the respondent in his answer, pleas and demurrer is sufficiently stated in the opinion. His testimony as taken by his deposition was in conflict with that of the complainant; to the effect that the respondent testified that the complainant misrepresented to him the value of the lots in Shelby, and that it was upon this misrepresentation the trade was made.

J. J. Willett, for appellant.

McLeod & Tunstall, for appellee.

HARALSON J.

The specific performance of the contract in this case is resisted on the grounds, (1) that the alleged agreement signed by the respondent for the alleged sale of said lot of land is too uncertain and indefinite to be specifically performed; (2) that said agreement does not state where said lot is situated, and does not sufficiently described it; (3) that the contract is within the statute of frauds; and (4) that it is inequitable and unjust, and should not be performed on that account.

1. The contract is dated, "Anniston, Ala., April 9, 1890." The property purchased, the conveyance of which is sought to be enforced, is described in the writing to be, as set out in the bill, "my lot on the west side of Wilmer street, between Eleventh and Twelfth streets, and 35 feet on Wilmer street, running back 100 feet to an alley." With this memorandum of sale, bearing date of execution at Anniston, Ala., the presumption is that the land sold is situate in that city. Mead v. Parker, 115 Mass. 413.

2. The description of the lot in the memorandum is one of those uncertain descriptions which may be aided by parol, and comes within the maxim "id certum est, quod certum reddi." Bottoms v. Dykes (Ala.) 14 So. 874, 13 So. 582; Black v. Tennessee, C. I. & R. Co., 93 Ala. 109, 9 So. 537; Dorgan v. Weeks, 86 Ala. 329, 5 So. 581; Angel v. Simpson, 85 Ala. 53, 3 So. 758; O'Neal v. Seixas, 85 Ala. 80, 4 So. 745; Louisville & N. R. Co. v. Boykin, 76 Ala. 560; Meyer v. Mitchell, 75 Ala. 475; Wilkinson v. Roper, 74 Ala. 141; Sikes v. Shows, 74 Ala. 385; Chambers v. Ringstaff, 69 Ala. 140.

3. The memorandum of sale is not within the statute of frauds. As we have heretofore said, "it is to oral evidence of contracts which ought to be reduced to writing, and signed by the party to be charged, and not to written evidence of such contracts, the statute of frauds is directed. Whenever evidence of the contract is found in writing, signed by the party to be charged, which is certain and definite, there is no danger of fraud and perjury, and it is fraud and perjury the statute intends to prevent. The form of the writing is not important, nor are the purposes for which it may have been intended, at all conclusive." Jenkins v. Harrison, 66 Ala. 359; Carter v. Shorter, 57 Ala. 256; Land Co. v. Dromgoole, 89 Ala. 508, 7 So. 444. In this contract, the city in which the property is located is definite, the property sold, certain,-in that it may be made certain; the consideration, $1,200, which purports to have been paid in cash, is expressed; the time for its performance was not distant, but presently; the names of the contracting parties are given, and it was subscribed by the party to be charged therewith, and is, altogether, sufficient.

4. The receipt of E. T. Witherby, trustee, which was delivered by complainant to the defendant, bears even date with said memorandum of sale, and was assigned by complainant to defendant, as a part consideration,-$1,100,-of the purchase price for the Anniston lot. It is averred in the bill, and shown in the proof, that complainant, and not the Shelby Iron Company, paid the amount therein specified to said Witherby; that said receipt was on a printed blank, in which the words "Shelby Iron Company" appeared as the payor, and inadvertently these words were not struck out, and complainant's name, instead, inserted. It was indorsed,-"I hereby transfer my interest in the within described property to Russell Homan,"-dated, signed by complainant, and delivered to defendant, at the time he gave complainant his memorandum of sale. As between the complainant and defendant, the mistake of the receipt, in not containing complainant's name in place of that of the Shelby Iron Company, is obvious and self-corrective. It is said this paper is void under the statute of frauds, but, occurs to us, that that statute has nothing to do with it. It is not a contract to convey land, but is simply a receipt for so much money paid by the complainant to one of a half dozen purchasers of several lots of land,-who agreed,-himself being one of the number,-to represent the others, in receiving their money and paying it over on the purchase they had jointly made of the lots, and procuring a deed to the purchasers. The paper evidenced the fact, that complainant had paid his share of the purchase money to the common agent of the "buyer" or "syndicate," as they are called in the pleadings, and when complainant assigned said receipt to defendant, he merely authorized him to take his place in that purchase. So far as the receipt goes, or has any bearing on this case, it is evidence between the parties, that complainant paid $1,100 of the purchase price of the lot he bought from defendant, by transferring to him this paper. It is altogether a different instrument from the one which was considered in the case of Nelson v. Manufacturing Co. (Ala.) 11 So. 695, to which we have been referred by counsel.

5. The court exercises discretion in granting of withholding a decree of specific performance, neither party being entitled to it as a matter of right. It is not a discretion which will be arbitrarily or capriciously...