Nelson v. Shelby Mfg. & Imp. Co.

• Decision Date: 02 November 1892
• Citation: 96 Ala. 515,11 So. 695
• Court: Alabama Supreme Court
• Parties: NELSON v. SHELBY MANUF'G & IMP. CO.

11 So. 695

96 Ala. 515

NELSON v. SHELBY MANUF'G & IMP. CO.

Supreme Court of Alabama

November 2, 1892

Appeal from circuit court, Shelby county; JAMES R. DOWDELL, Judge.

Suit by Frank Nelson, Jr., against the Shelby Manufacturing &amp Improving Company to recover back money paid by him for land under an alleged void sale. Judgment for defendant. Plaintiff appeals. Reversed.

This action was brought by the appellant, Frank Nelson, Jr. against the appellee corporation, and sought to recover for money had and received. The complaint contained 14 counts. Each of the first 13 was for separate sums of money alleged to have been paid for a like number of separate lots, and the fourteenth count was for all of these sums of money in the aggregate. The defendant pleaded non assumpsit. The plaintiff based his right to recover on two propositions: First, that the contract of sale was void under the statute of frauds second, because, as he alleges, he was induced to make the several purchases through representations of the defendant by its agents, which were false and fraudulent, and which misled and deceived him, and which have not been complied with by the defendant. The several rulings of the lower court upon the evidence which are considered by this court are sufficiently stated in the opinion, and demand no further notice in detail. There were many charges given at the request of the defendant, and to the giving of each of said charges the plaintiff duly excepted. Among the number were the following: (24) "If the jury believe from the evidence that at the time of the sale or afterwards the plaintiff paid the defendant a part of the purchase money for certain lots, and was let into possession, then they must find for the defendant." (16) "The plaintiff, in taking possession of the lots under the contract of sale in this case, would not be a trespasser. The receipt which the defendant gave to plaintiff authorized the plaintiff to take possession of the lots so purchased by him." Upon verdict and judgment being rendered for the defendant, the plaintiff made a motion for a new trial, and one of the grounds of said motion was that the defendant's counsel "in commenting on the testimony, among other things, said that the plaintiff had been ungrateful, and characterized ingratitude as the basest of crimes; and further repeated to the jury the fable of the farmer warming the frozen asp or viper into life, comparing Capt. Bush to the farmer, and the plaintiff to the asp or viper; and counsel further repeated to the jury a part of the history of Columbus in search for the new continent, when there was a mutiny in his crew on account of disappointment before discovery of the new world, and compared the plaintiff to the mutineer on the ship in that history." The bill of exceptions, however, does not show that at the time of making this argument complained of in the motion for a new trial the plaintiff objected to the same, or asked the court to exclude it from the jury. The plaintiff brings this appeal, and assigns the various rulings of the lower court as error.

Pettus & Pettus, for appellant.

Knox & Bowie, for appellee.

COLEMAN J.

The plaintiff, Nelson, sued in assumpsit to recover back money paid as a part payment for the purchase of certain lots sold to him by the defendant, (appellee.) The right to recover is based upon two grounds; First, the invalidity of the contract of sale under the statute of frauds; and, second, actual fraud in the sale of the lots. It is conceded that there was no note or memorandum of the agreement in writing, subscribed by Nelson, the plaintiff, or by other person for him, as required by the statute. The material facts of the sale and purchase, so far as the agreement is affected by the statute of frauds, are undisputed, and may be briefly stated as follows: After extensive advertisement, on the 1st day of April, lots in the town of Shelby, Shelby county, were put upon the market for sale. A fixed valuation was placed upon the several lots, and those wishing to purchase drew for first, second, third, etc., choice of lots at the valuation fixed. The town was platted and mapped, upon which could be seen the location and size of each lot by number and block, and its value, and this map was tacked down on a large table in the office of the company. When it became plaintiff's turn to select the lots he wished to purchase, he went into this office, and selected 13 lots located in different parts of the town, and of various valuations. As each lot was selected by the plaintiff, a written memorandum, signed by the company's agent, was handed to him, and when his selections were completed he took the several memoranda into an adjoining room, to the treasurer of the company, made a one-third cash payment, and received from the treasurer of the company a written receipt for the cash payment and statement of the contract of sale. Similar memoranda of the selection and receipts for the one-third cash payment were executed for each of the 13 lots, but, as they were similar, it is necessary to set out only one of each. At the time of the selection of a lot by a purchaser the memorandum given was as follows: "Sold to Frank Nelson, Jr., 1 Lot 1, R. 70, Block 63, 10.00. For the Shelby M'f'g Improvement Co. By J. SCHWED." Upon its presentation to the treasurer, and the payment of the one-third cash payment, a written instrument, as follows, was executed and delivered to the purchaser: "No. 277. Shelby Manufacturing & Improvement Co., Shelby, Ala., April 3d, 1890. Received of Frank Nelson, Jr., two hundred and thirty-three 33-100 dollars, being one-third cash payment on lot No. (1) of block No. 63. Bond for title to said lot will be delivered on execution of notes for balance of purchase money, and return of this receipt properly indorsed. T. H. HOPKINS." Suit was brought to recover back the cash payment, without an offer to execute notes for the balance of the purchase money, and without previous demand, or further notice of an intention not to abide by the purchase. The ability and readiness of the vendor to carry out its agreement and make good and sufficient bond for title was not questioned. Whether the plaintiff ever had actual possession of the lots, or either of them, was a controverted question on the trial. There was no objection or hindrance to his taking possession of 12 of the lots purchased at any time, if the purchaser had seen proper to exercise the privilege. There is some contention as to one of the lots.

We will first consider the question upon the hypothesis that plaintiff in fact never took actual possession, and see whether upon this hypothesis he is entitled to recover back the purchase money paid. The present statute of frauds (Code § 1732) provides that "in the following cases every agreement is void, unless such agreement, or some memorandum thereof, expressing the consideration, is in writing, and subscribed by the party charged therewith, or some other person by him thereunto lawfully authorized in writing." Subdivision 5: "Every contract for the sale of lands, tenements, or hereditaments, or any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof, be paid, and the purchaser be put in possession of the land by the seller." The old statute of frauds read as follows: "No action shall be brought upon any contract for the sale of lands, tenements, or hereditaments, or the making any lease thereof for a longer term than one year, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized." Clay, Dig. p. 254, § 1. Under the older act-that to be found in Clay, Dig. supra-it was held that a part performance, such as the payment of a part of the purchase money and possession, or even possession without payment, when taken in pursuance of and under the contract with the assent of the vendor, was sufficient to take the agreement outside the operation of the statute of frauds. Danforth v. Laney, 28 Ala. 274. In such cases, notwithstanding the statute of frauds, both parties were bound. The vendee could enforce specific performance against the vendor, although his agreement to sell was wholly in parol. 28 Ala., supra. To take an agreement for the sale of land out of the influence of the present statute of frauds, when there is no sufficient note or memorandum in writing, there must be a payment in whole or in part of the purchase money, and, in addition thereto, the purchaser must be put in possession of the land by the seller. When there has been a part payment of the purchase money, and possession of the land by the purchaser, the contract for the sale of land is excepted from the statute by its terms, and is mutually binding and enforceable by either party. We need not consider the difference of the legal effect of the substitution of the word "subscribed" in the later act for the word "signed" as used in the older act, and the further difference that under the present act the agent who signs must have written authority. Excepting these two differences, the language of the two acts is precisely the same,-"and subscribed by the party to be charged." A sound rule of interpretation requires that the same legal significance and effect be placed upon the language "subscribed by the party to be charged," used in the present statute, as judicially declared under the former act. Many decisions had been rendered by the highest court of this state construing the statute of frauds enacted by the legislature as stated in Clay's Digest, and were in force when the present statute (both...