Lamar v. King

• Court: Alabama Supreme Court
• Writing for the Court: SAYRE, J.
• Citation: Lamar v. King, 168 Ala. 285, 53 So. 279 (Ala. 1910)
• Decision Date: 06 July 1910
• Parties: LAMAR v. KING.

53 So. 279

168 Ala. 285

LAMAR v. KING.

Supreme Court of Alabama

July 6, 1910

Appeal from Circuit Court, Walker County; James J. Ray, Judge.

Action by J. L. King against Howard Lamar. Judgment for plaintiff and defendant appeals. Reversed and remanded.

A. F Fite, for appellant.

D. A McGregor, for appellee.

SAYRE J.

It appeared in the evidence without contradiction that no money came into the hands of Lamar as the result of his and plaintiff's joint enterprise which the latter was entitled to receive ex equo et bono. And the court's general oral charge to the jury, as well as special charges in writing given on request of the defendant, show conclusively that the trial court so considered and treated the case. So will we. But the insistence was and is that the case was properly submitted to the decision of the jury on the issue whether defendant had made a promise to pay plaintiff the round sum of $1,000 conditioned only upon defendant's obtaining title to the Leonard land with plaintiff's assistance, payable when defendant should dispose of the land; that is, whether defendant assumed a personal obligation to pay to the plaintiff that sum in the event and at the time specified. There can be no sort of question that plaintiff and defendant undertook to get control of a large tract of mineral land then owned in separate parcels by a number of other persons with the purpose of disposing of the consolidated tract to purchasers then in view at an anticipated price which would produce a profit of $1,000 to each of them. Prior to the joint undertaking defendant had in view the purchase of certain lands, or an option upon them. Plaintiff's participation in the project was deemed by defendant to be desirable, and perhaps necessary, for the reason that he stood in such relation to Leonard, who owned a tract, as that it was supposed that he would be able to induce Leonard to sell at a price which would permit the anticipated profit. And the Leonard tract was so situated as to constitute the key to the situation--the other lands would not be available as a tract, contiguous in its parts, for the purpose then in view except in conjunction with the land owned by Leonard. There are one or two general expressions in plaintiff's testimony which standing alone lend color to the contention that the defendant gave his personal obligation to pay on condition only that he should be able to get a deed or an option on the Leonard land, and that without regard to whether or not he should be able to realize a profit. But, when recourse is had to the facts detailed in his evidence, it is to be seen clearly, as we think, that such was not the understanding and agreement of the parties. But for proper limitation upon the space to be occupied by this case we might quote the plaintiff's testimony in extenso to sustain this conclusion. We will, however, state only its salient features, following therein closely plaintiff's language, and be content with observing, by way of conclusion, that it shows that plaintiff and defendant embarked upon the enterprise on equal terms as joint adventurers. Defendant was not expected to purchase the lands for his own use, but only to acquire an option on them which would be disposed of to prospective purchasers, or, if he acquired title, it was to be only as a conduit through which the title should pass from the then owners to the expected purchasers; and so, after some difficulties and delay, the matter eventuated, though without profit or commission actually realized by the defendant on the price of the land in which the plaintiff was interested. Plaintiff and defendant were each to make $1,000 out of the transaction, this upon the anticipation that Leonard was to give an option on his land at $10,000 which was to be disposed of at $12,000. Defendant was to put the land upon the market and sell it. His statement to plaintiff was that Leake (who was the agent through whom defendant was to reach the prospective purchasers) was to see that he (plaintiff) got the $1,000. Defendant told plaintiff that Leake said he would guarantee them $1,000 in the deal. The land was not to be sold to defendant. It was to be made over to him to sell. He was to sell it for enough to get out of it $1,000 for each of them. The money was to come from the purchasers. Defendant was also to have $1,000 out of the trade. And finally, on the day when defendant got a deed from Leonard, there was an agreement that as soon as the land was sold, as soon as the trade went through, both plaintiff and defendant were to have $1,000. This is the aspect of the case presented by the plaintiff's testimony, and on it, and the fact undisputed, and so treated by the trial court, that defendant had not up to the time of the trial realized profit or commission, the plaintiff was not entitled to recover.

But, while the bill of exceptions was drawn in a way which indicates with a degree of probability that it contains the evidence upon which the case was tried, there is no formal statement that such is the case, nor the equivalent of any such statement. This court has in a great number of cases rigorously applied the rule that, where a bill of exceptions fails affirmatively to show that it contains all the evidence, any state of the evidence will be presumed to uphold the rulings of the trial court. A case especially in point is Southern Mutual Ins. Co. v. Holcombe, 35 Ala. 327, followed recently in Lewis Land Co. v. Interstate Lumber Co., 50 So. 1036. In each of those cases the bill of exceptions was framed as is the bill here. We must, therefore, consider the various rulings assigned for error upon the hypothesis, where that hypothesis will save error, that there was evidence which justified the submission to the jury of the issue whether defendant did enter into a personal obligation to pay plaintiff the sum of $1,000 for services to be rendered in procuring a conveyance to defendant of the Leonard land, conditioned only upon his acquiring that land, and payable when it should be sold to prospective purchasers.

The demurrers to amended counts 4 and 5 were without merit. Those counts allege plaintiff's cause of action perspicuously and intelligibly, leave no room for misunderstanding, and comply with the requirements of the Code, § 5321.

Having stated a case on the common counts, plaintiff sought to recover by showing a special contract to pay a round sum on the performance of services with a certain result, the date of payment to be...