Paulk v. Jasper Land Co.

• Decision Date: 16 June 1897
• Citation: 22 So. 495,116 Ala. 178
• Parties: PAULK v. JASPER LAND CO.
• Court: Alabama Supreme Court

22 So. 495

116 Ala. 178

PAULK v. JASPER LAND CO.

Supreme Court of Alabama

June 16, 1897

Appeal from circuit court, Walker county; James J. Banks, Judge.

Action by James A. Paulk against the Jasper Land Company to recover money had and received. From a judgment for defendant plaintiff appeals. Affirmed.

The plaintiff claimed the money sued for as having been paid under a contract, which was signed by the plaintiff on March 16, 1888, which the plaintiff in his complaint alleges was never signed by the defendant. This contract was in words and figures as follows: "Agreement of Jasper Land Company. Whereas the Jasper Land Company proposes to sell or cause to be sold 3,000 town lots in and around the city of Jasper, at the rate of $100 per lot, business lots to be not less than 25 feet front and residence lots not less than 50 feet front. And whereas, the Japser Land Company hereby agrees to set aside 50 per cent. of the money received from the sale of lots above mentioned, which said fund shall be deposited with the Alabama National Bank as trustee, the same to be invested by said trustee under the direction of the board of directors of said company in manufacturing industries or other industrial improvements to be located in or adjacent to the city of Jasper. And whereas, said Jasper Land Company proposes to give to each purchaser of a lot or lots a certificate of paid-up capital stock in some one of the manufacturing establishments so built, equal to one-half of the money paid into this company by said purchaser. And whereas the said Jasper Land Company further agrees that upon the full payment of $100 for each lot subscribed for a certificate or other instrument showing that the holder thereof is entitled to a certificate of stock as above stated, to the amount of $50, shall be issued which said certificate shall be received at par in payment for any other lot purchased by the holder thereof from said company after the allotment herein provided for, and until May 1, 1889. And whereas the said Jasper Land Company further proposes that the particular lot or lots to be taken by the several parties respectively subscribing hereto and contracting for the same as hereinafter agreed and stipulated shall be determined as follows, to wit, the numbers of all lots, surveyed, laid out and platted, except each third lot, which is hereby reserved to the company, shall be written or printed upon cards and placed in a box or other receptacle; a committee of subscribers shall be appointed whose duty it will be to call all the names of the subscribers hereto and the number of lots by each subscribed, and shall cause to be drawn of the cards above mentioned, one card for each and every lot subscribed, and the number or numbers so drawn shall be taken and considered as the number of lots or lot purchased or contracted for by him, her or them respectively, said division to take place not later than May 1st, 1888. The stock of industrial or manufacturing companies to which each purchaser of a lot or lots is entitled shall be distributed in the same manner as the lots of the company at some period within two years from May 1, 1888, or immediately upon completion of all industries built with the 50 per cent. so reserved as above set forth. And whereas said company proposes to sell each lot for the sum of $100 of which $25 shall be paid in cash; $25 on the 15th day of April, 1888 and $50 on the 1st day of November, 1888, with interest from May 1st, 1888, the deferred payments to be made to the Alabama National Bank at Birmingham, Alabama. And whereas it is also expressly stipulated by said company that the failure of any subscriber hereto to meet any payment herein contracted to be made by him at the time herein stipulated shall forfeit to this company any and all payments previously made by such subscriber and any or all right to stock or lot. Now therefore, we the undersigned, hereby respectively accept the propositions, terms and conditions of said company as hereinabove set forth, and we agree to subscribe for the number of lots respectively set opposite our names, and to pay for the same as hereinabove stipulated."

The grounds upon which the plaintiff bases his right to recover are set forth in the opinion.

To the plaintiff's complaint the defendant filed the following pleas: "Comes the defendant and for answer to the complaint says, he pleads the general issue. (2) For further answer to said complaint this...