Montgomery Lodge No. 596, B.P.O.E., v. Massie

• Decision Date: 15 April 1909
• Citation: 159 Ala. 437,49 So. 231
• Parties: MONTGOMERY LODGE NO. 596, B. P. O. E., v. MASSIE.
• Court: Alabama Supreme Court

49 So. 231

159 Ala. 437

MONTGOMERY LODGE NO. 596, B. P. O. E., v. MASSIE.

Supreme Court of Alabama

April 15, 1909

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by Bessie K. Massie against Montgomery Lodge No. 596 Benevolent Protective Order of Elks, to recover $500 paid on a real estate transaction not consummated. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff's contention is that under an agreement or option she paid the defendants by certified check, which was collected by them the sum of $500, and that the agreement was never consummated or conveyance made, as the defendant failed to furnish an abstract of title. The agreement referred to is as follows "For and in consideration of the sum of $500 to us in hand paid by Bessie K. Massie, the receipt whereof we do hereby acknowledge, we agree to sell to her our lot or parcel of land situated in the city and county of Montgomery, state of Alabama, on the N.W. corner of N. Court street and Bibb street, said property being more fully described as follows [Here follows the complete description.] Providing the said Bessie K. Massie pays to us the sum of $17,700 within ten days from the receipt by her of an abstract of title to this property, which we hereby agree to furnish. If the title to said property is not satisfactory to the said Bessie K. Massie, then the aforesaid $500 is to be returned to her. The said Bessie K. Massie shall have the right to assume a mortgage in the sum of $11,000, now recorded against the said property, if she so desires." This agreement was signed by W. J. Tuttle and W. J. Osborne. The contention of the appellant is that the contract is stated in certain letters, which are as follows: "To Messrs. Dowdell & Joseph, City--Gentlemen: Subject to rejection or confirmation by the members of Montgomery Lodge No. 596, B. P. O. E., the governing board desires to submit the following proposition: The governing board will receive and recommend to the favorable consideration of the lodge a bid of $18,200 net for the 100 feet of Elks' property [here follows the description of the property]. If agreeable to the purchaser, instead of $18,200 cash, he may offer to pay $7,200 in cash and assume the $11,000 mortgage now on this property, provided the mortgagees can be induced to release his lien upon the undisposed part of the Elks' property; otherwise, payment must be $18,200 cash. The purchaser must also pay the state, county, and city taxes for the current year, and accept a transfer of the policy of insurance, and prorate the premiums for the unexpired period. It is distinctly understood that the fixtures of every kind now in the building west of the stable are hereby reserved to the Elks. To receive consideration the bid must embody the foregoing terms, and must be accompanied by an unconditional certified check of $500, which check is to be forfeited to the lodge of Elks in case the purchaser fails to comply with the terms of the bid. The purchaser must redate the abstract at his expense"--and signed, "W. J. Tuttle, Exalted Ruler." The answer to the above is as follows, addressed to the lodge: "Referring to your letter of the 7th, offering to sell that portion of the Elks' lodge property for the sum of $18,200 net, this proposition is hereby accepted, and also the conditions therein contained. We have this day deposited a check for $500 in good faith with W. J. Tuttle, Exalted Ruler"--and signed, "Dowdell & Joseph."

Goodwyn & McIntyre, for appellant.

Watts & Letcher, for appellee.

MAYFIELD J.

This was an action by appellee against appellant to recover $500. The complaint contained the common counts, and six additional special counts were added by amendment, to each of which the defendant pleaded the general issue. The case was tried by the judge of the city court of Montgomery without a jury, and resulted in a judgment for the plaintiff for $500 and interest thereon. The only error assigned on the appeal is the action of the city court in rendering judgment for the plaintiff below.

Findings and conclusions of courts in cases tried by the judges without a jury, as this was, and when the facts are not agreed upon, and there are no special findings, nor requests for such findings, the conclusions of the judge stand as the verdict of the jury, and cannot be reviewed by the appellate court,...