Moss v. Cogle

• Decision Date: 06 March 1958
• Docket Number: 2 Div. 379
• Citation: 267 Ala. 208,101 So.2d 314
• Parties: Roger M. MOSS et al. v. B. A. COGLE.
• Court: Alabama Supreme Court

Page 314

101 So.2d 314

267 Ala. 208

Roger M. MOSS et al. v. B. A. COGLE.

2 Div. 379.

Supreme Court of Alabama.

March 6, 1958.

The option agreement (omitting description of the land) is as follows:

'In Consideration of the sum of $500.00 to the undersigned, Roger M. Moss and Theda B. Moss, his wife, of Lamison, Alabama, hereinafter called the sellers, paid by B. A. Cogle, of Dixons Mills, Alabama, hereinafter called the purchaser, the receipt whereof is hereby acknowledged, the sellers hereby give the purchaser, his heirs and assigns, the exclusive option to purchase, on or before March 19, 1956, the real estate described in 'Exhibit A' hereto attached and made a part hereof, said tracts of land containing, approximately, 2,913 acres, provided, the purchaser shall give the sellers notice, in person or by registered mail, addressed to the sellers, at Lamison, Alabama, before March 19, 1956, of his intention to exercise this option. Should the purchaser fail to give this notice within said time, this option shall then become null and void.

'If this option is not exercised within the time specified, it is agreed that the purchaser will forfeit the $500.00 paid for this option. If said option is exercised, said $500.00 will be credited on the down payment to be made on January 5, 1957. Should the purchaser elect to exercise this option within the time stated, the sellers agree that within ninety days thereafter they will deliver to the purchaser a deed, in fee simple, to the premises, free of liens and encumbrances, with covenants of general warranty, and in proper form for recording, subject only to the reservations and exceptions hereinafter noted.

'It is assumed that the acreage of the sellers included in this option is 2,913 acres; if said acreage is more or less, the purchase price is to be adjusted on the basis of $100.00 per acre. If this option is exercised, it is agreed between the parties hereto that the sellers will convey to the purchaser a merchantable title to said property, and which will be approved by the purchaser's Attorney. It is understood that the sellers will convey all oil, gas, and other minerals that they have in said lands, and it is understood that they own all the minerals in said lands, except as noted in 'Exhibit A.'

'It Is Agreed that if the title to said lands is approved by the Attorney for the purchaser, upon the tender of proper deed therefor, the purchaser will execute to the said Roger M. Moss a real estate mortgage on the entire premises covered by this option, securing the payment of ten notes, the first payment of $72,825.00, less the $500.00 paid for this option, with $100.00 an acre added for each acre over the 2,913 acres, or $100.00 per acre less for each acre under the 2,913 acres; the balance of $218,475.00 shall be evidenced by nine promissory waive notes, payable annually, beginning January 5, 1958, all of which notes are for $24,275.00 each, bearing three per cent interest from January 5, 1957.

'It Is Agreed that said mortgage will be a first mortgage, covering lands, timber, and improvements, on said premises; and it is further agreed that the purchaser shall not have the right to cut or remove any timber from said lands until the payment due January 5, 1957, has been made.

'It Is Further Agreed that after said payment is made, the purchaser shall have the right to cut and remove the timber from 300 acres of said land, and no more, until another note is paid, when he shall have the right to cut and remove the timber on an additional 300 acres. In like manner, the purchaser shall have the right to cut and remove the timber on an additional 300 acres of said land after each of the remaining notes have been paid.

'It Is Understood that if this option is exercised, the purchaser does not acquire any part of the farm equipment, nor any interest in the livestock now on said premises.

'It Is Further Understood and Agreed that if this option is exercised, the sellers shall have the right to use said property for pasture purposes for the remainder of the calendar year 1956.

'It Is Understood that the said sellers will furnish deed, with revenue stamps attached, and that, in consideration of the use of said property for the calendar year 1956, the sellers will pay the taxes on said property falling due on October 1, 1956.

'The sellers further agree that on tender of deed by them to the purchaser, the sellers will furnish the purchaser an abstract of title, covering all of said land; and said abstract shall show title out of the United States Government, and shall also cover the period of thirty-five years immediately preceding the consummation of this sale.

'Should it be found that the sellers do not have merchantable title to a substantial part of said lands, the sellers agree to refund to the purchaser $500.00 paid them for this option.

'It Is Understood that the sellers' deed will be made subject to existing easements for rights-of-way and public utilities.

'In Witness Whereof, said sellers have hereunto set their hands and seals, In Duplicate, on this, the 8th day of February, 1956.'

John H. Blanton, John W. Lapsley and Lapsley & Berry, Selma, for appellants.

A. S. Johnson and W. Johnson McCall, Thomasville, for appellee.

LAWSON, Justice.

Roger M. Moss and wife, Theda, filed their bill in the circuit court of Marengo County, in equity, against B. A. Cogle, wherein they sought a declaratory judgment as to whether the respondent had timely and effectively elected to exercise an option to purchase land executed to him by the complainants so as to be binding on the complainants. Cogle filed an answer and a cross bill wherein he prayed for a decree requiring complainants-cross respondents to specifically perform. Moss and wife filed demurrer, a plea of the statute of frauds, and an answer to the cross bill. The demurrer to the cross bill was overruled. After a hearing during which the testimony was taken orally before the trial court a decree was entered wherein it was decreed in part as follows: 'It is, therefore, ordered, adjudged and decreed that the parties will perform their respective duties as set out in the option agreement and extension thereof * * *' From that decree Roger M. Moss and wife, to whom we will sometimes refer hereafter as the complainants, have appealed to this court.

The option which with the extension thereof forms the basis of this litigation, appears in the report of the case. The original option was executed by the complainants on February 8, 1956, whereby in consideration of the payment to them of the sum of $500 by Cogle, they gave Cogle, his heirs and assigns, 'the exclusive option to purchase, on or before March 19, 1956,' 2,913 acres of land, provided 'the purchaser [Cogle] shall give the sellers notice, in person or by registered mail, addressed to the sellers, at Lamison, Alabama, before March 19, 1956, of his intention to exercise this option.' It was further provided in the option: 'Should the purchaser fail to give this notice within said time, this option shall then become null and void.'

The extension, which bears date of March 15, 1956, provides in pertinent part as follows:

'Now, Therefore, in consideration of the sum of $100 to them in hand paid by said B. A. Cogle, the receipt whereof is hereby acknowledged, the said Roger M. Moss and Theda B. Moss do hereby extend the time in which said B. A. Cogle may exercise the option to and including the 30th day of April, 1956. If the option be exercised, the said payment of $100 shall be credited to the first installment of the purchase price as set out in said option agreement. All other terms and provisions of the said option shall remain unchanged.'

The complainants in the trial below took the position that the only notice which they ever received concerning an attempted exercise of the option was a registered letter which the complainant Theda B. Moss received on April 28, 1956, at Lamison, Alabama. The letter reads as follows:

'Thomasville, Alabama,

'April 27, 1956.

'Mr. and Mrs. Roger H. Moss Lamison, Alabama.

'Dear Mr. and Mrs. Moss:

'I have decided to exercise the option which you gave me on 2,913 acres of land. This notice is given in accordance with the terms of the original option and the renewal thereof.

'It was my understanding that you would keep a detailed record of the timber cut on the right-of-way, and I shall expect this when you are ready to close.

'I have been informed that timber has been cut on other lands included in the option that you gave me, since said option was executed. I shall expect you to furnish me a statement showing the amount of timber so cut, and the location of the lands on which the cutting was done. I also want to know the kind of timber and the name of the man who did the cutting. I had no idea that you would permit any cutting other than on the right-of-way which we agreed upon.

'With kind regards, I am,

'Yours very truly,

'[Signed] B. A. Cogle

'By A. S. Johnson

'Attorney.'

The complainants contended in the trial court the letter set out above was insufficient to constitute an election to exercise the option for these reasons: (1) It came too late. This contention was grounded on the claim that the parties did not intend that Cogle should have longer than March 31, 1956, within which to give notice and 'that the date of April 30, 1956, was inserted in said extension agreement instead of March 31, 1956, as a mutual mistake of the parties or as a mistake of the attorney who drafted said agreement for their execution.' (2) The letter was not signed by B. A. Cogle personally but by his attorney, who had no written authority to affix Cogle's name to the letter, hence the notice was not given in compliance with the statute of frauds and was, therefore, ineffective. Title 20, § 3, Clause 5, Code 1940. (3) Irrespective of the statute of frauds, supra, the language of the original contract and the extension thereof required that the...