Jones v. First Nat. Bank

• Decision Date: 12 May 1921
• Docket Number: 2 Div. 739
• Citation: 206 Ala. 203,89 So. 437
• Parties: JONES v. FIRST NAT. BANK OF GREENSBORO.
• Court: Alabama Supreme Court

89 So. 437

206 Ala. 203

JONES v. FIRST NAT. BANK OF GREENSBORO.

2 Div. 739

Supreme Court of Alabama

May 12, 1921

Rehearing Denied June 23, 1921

Appeal from Circuit Court, Hale County; B.M. Miller, Judge.

Action by N.E. Jones against the First National Bank of Greensboro. Judgment for defendant, and plaintiff appeals. Affirmed.

In a vendor's action against a bank for purchase moneys deposited in escrow to be turned over to plaintiff when he delivered a deed and abstract, or returned to the purchaser in case of plaintiff's default, where the court instructed the jury that the burden was on plaintiff to show if no time was agreed on, that he placed the deed and abstract of title in the bank within a reasonable time, and that until the plaintiff satisfied the jury that the time within which the deed and abstract were delivered was a reasonable time for him to make them, the burden did not shift to defendant, there was no reversible error in a charge that if the deed and abstract were to be delivered by a certain date, plaintiff could not recover if he failed to perform by such date, though there was evidence that the purchaser waived his right to insist on strict performance within such time, the evidence being insufficient to show notice or knowledge to the bank of such waiver, and plaintiff not having asked for an explanatory charge, if the instruction was not clear.

Two checks were drawn by J.W. Blair, payable to appellant, N.E Jones, delivered to him, indorsed by him, and placed on deposit by Jones & Blair with the First National Bank of Greensboro in escrow, under the following contract:

"This contract made and entered into this day between N.E. Jones, party of the first part, and J.W. Blair, party of the second part, witnesseth, that party of the first part has sold this day to the party of the second part one tract of land containing 1,840 acres, more or less, and party of the second part has this day bought one tract of land of 1,840 acres, more or less, from party of the first part. Land being located in Lowndes county, Ala., about seven miles from Haynesville, Ala., the county seat.

"This land being recently known as the J.F. Compton place. This land is sold under the following terms and conditions: $35 per acre, aggregating the sum of $64,400. Said J.W. Blair has this day by check placed in the First National Bank at Greensboro, Ala., $20,000 to be held in escrow until party of the first part has made and executed the warranty deed, conveying a good and merchantable title and has furnished an abstract of title, and placed both warranty deed and abstract of title in the bank, at which time said money is to be turned over to the party of the first part. Party of the second part, John W. Blair is then to execute notes for the unpaid balance, dividing $44,400 in three equal annual payments, bearing 6 per cent. interest. The first payment to be one-third of the unpaid balance, is payable November 1, 1920, together with the interest of all unpaid balance. The second note to be paid November 1, 1921, with all interest on unpaid balance till that date. The third and last note to be paid November 1, 1922, with 6 per cent. interest. Each payment may be paid on or before the date set forth in the agreement. The party of the second part, J.W. Blair, has this day given N.E. Jones, party of the first part, exclusive option to sell the above piece at $45 per acre, less five per cent. commission, until December 1, 1920, and for this contract N.E. Jones, party of the first part, agrees and guarantees to forfeit $1,000 of the payment that is to be made on said place November 1, 1920, if he does not sell this place by December 1, 1920, but should said N.E. Jones comply with this contract before December 1, 1920, he does not make any forfeiture but shall receive 5 per cent. commission.

N.E. Jones.

"J.W. Blair.

"Witnesseth."

This contract, together with the checks, was delivered to the bank, and the officials of the bank were permitted to testify that Blair stated to Blunt, president of the bank, in the presence of Jones, and without objection from Jones, that it was agreed between Jones and Blair that Jones should have until the 1st day of January, 1920, to deliver to said bank a conveyance to Blair of the lands described in the contract, an abstract showing merchantable title in Jones, that these should be approved by Blair's attorney, and that on delivery of these instruments by Jones, properly approved by Blair's attorney, the bank should deliver to Jones the $20,000, but, if Jones failed to do so, the money should be returned to Blair. It further appeared that at that time Jones did not own the land, but had a contract with one Compton, the owner of the land, to convey it to Jones, upon Jones' compliance with the contract by January 1, 1920. It was further shown that McDaniel was Blair's attorney and that Blair and McDaniel were in Demopolis on January 1 and 2 but came to Greensboro on January 3, 1920, and while there examined and approved the papers; that on January 2 Jones acquired the land from Compton, and on January 3, 1920, Jones tendered to the bank the deed and the abstract, approved by McDaniel, and made a demand on the bank for the money, which was refused, and the money was paid to Blair.

Evins & Jack and Thomas E. Knight, all of Greensboro, Mallory & Mallory, of Selma, and Brown & Denson, of Birmingham, for appellant.

De Graffenreid & James, of Greensboro, and Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, for appellee.

THOMAS J.

The cause was submitted on motion and on its merits. The motion was directed to striking conjunctively all of the several papers indicated, and not disjunctively any of them.

The motion to strike from the bill of exceptions the documents set out therein--namely, the contract between J.W. Blair and N.E. Jones, the deed from said Jones and wife to Blair, and the abstract of title to the property indicated in said contract and deed--must first be considered. The ground thereof is that these instruments were not set out at length originally in the bill of exceptions as signed by the trial judge, and were not sufficiently identified by the reference therein made to authorize the clerk to include them in the bill of exceptions. To prevent the delay and expense of a certiorari and its return, counsel of record included in the original bill of exceptions an agreement touching the documents as follows:

"In the original bill of exceptions, which was signed by the presiding judge, the following documents or instruments of writing were not set out in full, but the clerk was directed to incorporate them in the bill of exceptions, the recitals in the bill of exceptions in reference thereto being as follow: Thereupon the plaintiff read in evidence the contract between Jones and Blair. Thereupon plaintiff also read in evidence the deed from Jones to Blair. Thereupon plaintiff read in evidence the abstract of title (the clerk will here set out said contract, said deed, and said abstract in this bill of exceptions), the same being now in his possession and in the file of said cause. They are as follows: 'All as shown by the original bill of exceptions which is hereto attached.' The documents or instruments of writing referred to were the contract between N.E. Jones and J.W. Blair, the deed from N.E. Jones and wife to J.W. Blair, and the abstract of title to the lands, which said documents or instruments of writing were in the file in said cause. This agreement is made in order to prevent a continuance of the cause and in order to save the time that would be required to await a return by the clerk of the lower court to a writ of certiorari."

The recital (in the original bill of exceptions, as signed by the presiding judge), concluding the testimony of N.E. Jones, is as follows:

"I did not have any other land in Lowndes county other than in that deed. The lands embraced in the deed were all the lands I had in Lowndes county. It was recently known as 'The J.F. Compton place,' as I bought it from him, and that is the land that Blair and I were dealing with in that contract. The land conveyed in this deed was the J.F. Compton place, and was the same land mentioned in the contract and the same land embraced in the abstract of title."

It is further recited that "thereupon the plaintiff read in evidence" the matter as recited in the bill of exceptions and as stated in the agreement of counsel indicated above.

In obedience to such directions, the clerk included in the bill of exceptions the documents in question. The foregoing extract from the agreement of counsel admits that the respective papers referred to by the trial judge in his directions to the clerk and included by that official as a part of the bill of exceptions were the writings between Jones and Blair touching the contract or agreement between them of sale of the lands--that is, the contract of sale, the deed, and abstract of title--each of which instruments was read in evidence on the trial by the plaintiff, and being the "documents or instruments of writing [[which] were in the file in said cause." These papers set out at length by the clerk were thus identified as the ones which were then in his possession and "in the file in said cause," and which had been read in evidence by the plaintiff on the trial.

The rule obtaining in this jurisdiction is that when a document is sought to be made a part of the bill of exceptions by reference, and not by copy, it must be so described (by date amount, parties, or other identifying features) that the transcribing officer can, unaided by memory, "readily and with certainty know what document or paper is referred to, without room for mistake." Parsons v. Woodward, 75 Ala. 348, 352...