McCarty v. Harris

• Decision Date: 26 May 1927
• Docket Number: 6 Div. 858
• Citation: 216 Ala. 265,113 So. 233
• Parties: McCARTY v. HARRIS et al.
• Court: Alabama Supreme Court

113 So. 233

216 Ala. 265

McCARTY v. HARRIS et al.

6 Div. 858

Supreme Court of Alabama

May 26, 1927

Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.

Bill in equity by D.S. Harris and Rosary C. Harris against J.F. McCarty, for specific performance of a contract. From a decree overruling a demurrer to the bill, respondent appeals. Affirmed.

Aird & Aird, of Birmingham, for appellant.

Beddow & Ray, of Birmingham, and C.C. Ne Smith, of Miami, Fla., for appellees.

BROWN, J.

This bill is filed by the appellees to require specific performance of a contract to sell and convey real property. The contract expresses the consideration, is in writing, and is subscribed by the party to be charged, in full compliance with the statute of frauds. Code of 1923, § 8034.

The contract provides:

"The purchase price is to be $8,000.00 payable as follows: $100.00 as earnest money and part payment of said purchase price, receipt of which is hereby acknowledged, and the remainder of said purchase (price) payable as follows: $2,900.00 cash when the deal is closed, balance payable at the rate of $50.00 per month with interest figured in. The seller agrees to let the purchaser put a first mortgage on the above-described real estate. The above-mentioned $2,900.00 cash to be paid out of proceeds of the first mortgage." The contract is not affected with vitiating uncertainty for failing to specify the rate of interest on the deferred payment, as, in the absence of a specified rate, the legal rate is applicable. Code of 1923, § 8563; Campbell Printing Press & Mfg. Co. v. Jones, 79 Ala. 475.

Nor is the contract rendered so uncertain that its specific performance may not be decreed by failing to specify the amount of the first mortgage which the purchaser is authorized to place upon the property. This provision is not of the essence of the contract to convey, but is a mere subsidiary part of the agreement, and uncertainty in such provisions will not prevent a decree of specific performance. 25 R.C.L. 219, § 18; Atwood v. Cobb, 16 Pick. (Mass.) 227, 26 Am.Dec. 657, and note page 670.

The decree of the circuit court overruling the demurrers to the bill is free from error.

Affirmed.

ANDERSON, C.J., and SOMERVILLE and THOMAS, JJ., concur.