Jones v. Pettus

• Decision Date: 24 February 1949
• Docket Number: 3 Div. 515.
• Citation: 39 So.2d 12,252 Ala. 12
• Parties: JONES v. PETTUS et al.
• Court: Alabama Supreme Court

39 So.2d 12

252 Ala. 12

JONES v. PETTUS et al.

3 Div. 515.

Supreme Court of Alabama

February 24, 1949

Walter J. Knabe, of Montgomery, for appellant.

Hill Hill, Stoval & Carter, of Montgomery, for appellees.

BROWN Justice.

The appeal in this case is from the final decree of the circuit court, in equity, dismissing complainant's bill after demurrer sustained to the bill as last amended and complainant's declination to plead further. The bill was filed by the appellant against appellees to enforce specific performance of an executory contract for the sale of land (a house and lot) in the city of Montgomery. The bill alleges:

'That on, to-wit, August 13, 1946, said W. D. Pettus offered to sell to your Complainant certain property, said property being known as 822 Jefferson Street, Montgomery, and being more particularly described as follows:

'Lot no. 60 on the South side of Jefferson Street, in that part of the City of Montgomery, formerly known as 'New Philadelphia.'

'That said offer was made on the letterhead of the said W. D. Pettus and read in words and figures as follows:

Aug 13, 1946

"W D. Pettus, M. D.

601 Cleveland Avenue,

Montgomery 5, Alabama.

Mrs Jones,

The place is yours for $712.35 plus the lawyer's fee for transfering the property, to date. This amount, I prefer, cash. Of course, this does not clear the loan.

Yours truly,

Dr. & Mrs. Pettus.'

'That your Complainant subsequently accepted said offer during the time when said offer was open and offered to pay $712.35, assume the mortgage outstanding which was the amount agreed upon, and offered to pay any expenses such as taxes and attorney's fees, and offered to repay any payments made on the loan mentioned in said offer, which payments had been made since the time the said offer was made; but Respondents refused and continue to refuse to carry out said contract. Complainant alleges that the said W. D. Pettus was the agent of the said Alve Pettus for the sale of said property. * * *'

The defendant demurred taking the point among others that it affirmatively appears from the averments of said bill that the alleged contract, the specific performance of which is prayed in the bill, is void for indefiniteness in that the lands are not accurately described in said alleged contract. That it affirmatively appears that said alleged contract, the specific performance of which is sought in the bill, is in violation of the statute of frauds.

The contention of appellant is that the description of the land can be made certain by showing the situation and surroundings of the parties at the time of the negotiations. By amendment to the bill it was averred that at the time of the alleged transaction the complainant's husband, who had a life estate in the property, was in possession thereof and that subsequent to his death the complainant accepted the offer as outlined in the letter of the M. D. of date of August 13, 1946.

The contention, on the other hand, is that this executory contract which is indefinite in the description of the property cannot be aided by parol testimony going to show its certainty. The statute of frauds creates a rule of evidence in respect to the proof of executory contracts for the sale of land and the following test has been laid down by this court in respect to the proof of such contracts.

In the case of Alba v. Strong, 94 Ala. 163, 10 So. 242, it was observed by this court, speaking through Chief Justice Stone, that:

'The following propositions must be regarded as settled by the former decisions of this court beyond controversy: First. That to authorize the specific enforcement of an agreement to sell land all the terms of the agreement must have been agreed on, leaving nothing for negotiation. Second. That all the terms of the agreement, viz., the names of the parties the subject-matter of the contract, the consideration and the promise, must be in writing, signed by the party sought to be charged, or by his agent thereunto authorized in writing Code 1886, § 1732. Third. That it is not essential that the paper...