Moore v. Whitmire

• Decision Date: 07 November 1914
• Docket Number: 702
• Citation: 66 So. 601,189 Ala. 615
• Parties: MOORE v. WHITMIRE.
• Court: Alabama Supreme Court

66 So. 601

189 Ala. 615

MOORE v. WHITMIRE.

No. 702

Supreme Court of Alabama

November 7, 1914

Appeal from Birmingham City Court; William M. Walker, Special Judge.

Action by H.T. Moore against C.S. Whitmire for breach of contract and for deceit. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Count 1 is for the breach of the following agreement:

"It is agreed between H.T. Moore and C.S. Whitmire as follows: Moore is to transfer to Whitmire lot 4, block 9 E East Lake Land Company survey, 50X100 feet, in consideration of a transfer to him by Whitmire of the following: 540 acres of land in sections 24 and 25, township 18, range 1 east situated in Shelby county. Each party to the contract is to furnish an abstract showing a good title to said lands. Moore's property is to be free from all incumbrances and in fee simple, except a mortgage for $500 which Whitmire agrees to assume. Whitmire's property to be free from all incumbrances and in fee simple, except 80 acres. Thirty days shall be given each party to correct any defect to be found in the title."

Plaintiff Moore, alleges that he has complied with the contract on his part, but that said Whitmire has failed to transfer to him the said land, and to furnish him with an abstract showing a good title thereto. Count 2 is in case for deceit in inducing plaintiff to pay the purchase money, and procure a conveyance to defendant of a certain city lot, by falsely representing that he owned 540 acres of land in Shelby county, with the right to sell and convey the same. Count 3 is for defendant's breach of warranty in the sale of said land to plaintiff. Count 4 is substantially like count 1, except the allegation is that plaintiff's obligation was to cause the lot described to be conveyed to defendant. Count 5 declares on the common count. Counts A and B claim $5,000 of the purchase price for lands sold and conveyed to defendant. Demurrers were filed and sustained to counts 2, 3, and 4, and also to count 2 as amended. Defendant pleaded three special pleas to count 1 as follows:

"(1) Plaintiff has breached his part of the contract set up in the complaint in this, to wit: Plaintiff has never conveyed or offered to convey to defendant the said lot situated at East Lake.

"(2) Plaintiff failed within the time stipulated within said contract to execute and deliver to said defendant any deed or instrument in writing conveying or purporting to convey to defendant the said property or lot at East Lake described in the complaint.

"(3) Plaintiff failed to transfer the lot mentioned in the complaint, but, on the contrary, has tendered a deed purporting to have been executed by persons other than himself."

Plaintiff filed six replications to these pleas, to which demurrers were sustained, except as to replication F, as follows:

"That defendant had accepted the deed to lot 4, *** described in the contract, as a full compliance on the part of plaintiff."

These rulings on the pleading, together with several rulings on the evidence and several charges given and refused constitute the assignments of error.

Edward Jenkins, of Birmingham, for appellant.

Arthur L. Brown, of Birmingham, for appellee.

SOMERVILLE J.

Count 2 of the complaint, which is in case for deceit, was not, as amended, subject to any of the specified grounds of demurrer. To support this phase of the complaint it was not necessary that the transaction out of which the deceit arose should have been evidenced by a writing. And, even if the substantive law were otherwise, it is never necessary for the complaint to allege or show a writing in conformity with the requirements of the statute of frauds. The absence of such a writing is matter only of defense, unless affirmatively apparent on the face of the complaint, as has been many times declared. The trial court erred in sustaining the demurrer to this count.

Only general grounds of demurrer were interposed to the defendant's special pleas, and there was no error in overruling them.

The plaintiff's replication D was a departure from the complaint, and also otherwise defective; and, the matter set up in the other special replications which were eliminated being also available under special replication F, no prejudice could have resulted to the plaintiff from the rulings of demurrers thereto.

Whether or not the plaintiff owned the house and lot...