Patt v. Gerst

• Decision Date: 24 January 1907
• Citation: 42 So. 1001,149 Ala. 287
• Parties: PATT v. GERST.
• Court: Alabama Supreme Court

42 So. 1001

149 Ala. 287

PATT v. GERST.

Supreme Court of Alabama

January 24, 1907

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Joseph Patt against William Gerst. From a judgment for defendant, plaintiff appeals. Affirmed.

The alleged contract provided for the sale of certain land by the defendant to the plaintiff, and that plaintiff was to become agent of the defendant for the sale of beer, and was to form a copartnership with one Phillips for the conduct of a restaurant and saloon, in which they should sell the beer, in consideration of which it was stipulated that the plaintiff would give the defendant the use of a portion of the property rent free for defendant's stable and cold storage of defendant's beer for a period of five years, and the defendant, after the five years, was to pay the $350 a year rent. The second count was for a breach of the contract alleging simply the obligations to sell the land, and omitting the other provisions of the contract. The third count was upon on open account. The case was tried upon six pleas: The general issue; non est factum; the statute of frauds, in that the contract was not to be performed within a year and was not in writing; the statute of frauds, in that the contract provided for a sale of land and was not in writing; that the plaintiff had himself repudiated and declined to perform the said contract before the alleged breach by the defendant; and the plaintiff's inability to perform the contract. The facts which the plaintiff sought to prove, and which would have been shown, had all of plaintiff's testimony been admitted, were: That the plaintiff made some sort of an agreement with one Baker and William Gerst. That in May, 1904, he received this telegram "Will let you have property for $4,000 cash and proposition made Baker. Wire answer. [ Signed] William Gerst & Co." That on the same day plaintiff replied to that telegram, and that there was no other correspondence between the plaintiff and defendant in this case on any other subject than the subject of the purchase of the property about which this suit is brought. That the plaintiff had some correspondence with William Gerst during the year previous to the trial, the substance of which does not appear. That there was in existence an unsigned paper, stating the terms of the contract as set out in the first count and describing the land to be sold, but that this paper was never signed by defendant and was never delivered to plaintiff. That in response to the telegram received by plaintiff from defendant, above set out, the plaintiff sent a telegram to William Gerst Brewing Co., stating that the offer was accepted and the money had been deposited in the First National Bank of Mobile, and that in fact he had deposited this money. That plaintiff wrote and mailed the following letter, addressed to the William Gerst Brewing Co., dated Mobile, June 20, 1904: "Dear Sir: Yours of the 17th at hand. According to telegram received from Gerst Brewing Co. the trade was closed. I deposited your money, $4,000, at the First National Bank, Mobile, Ala., at that time. The following telegram was sent me: 'Will let you have property for $4,000 cash and proposition made Baker. Wire answer.' I answered: 'I accept your proposition and offer. Your $4,000 at First National Bank. Send draft for same, with papers attached, to same.' You answered 'Will forward deeds and agreement as soon as Attorney Smith sends our deed and abstract.' I answered: 'Send all papers and drafts to First National Bank, subject for examination.' I have not received any deed or abstract and I ask you to send them as soon...