Powell v. Higley

• Decision Date: 09 April 1890
• Citation: 7 So. 440,90 Ala. 103
• Parties: POWELL ET AL. v. HIGLEY.
• Court: Alabama Supreme Court

7 So. 440

90 Ala. 103

POWELL ET AL. v. HIGLEY.

Supreme Court of Alabama

April 9, 1890

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

The bill in this case was filed by the appellee against the appellants, C. B. Powell and E. B. Powell, and sought to have a contract specifically performed by the conveyance of certain lots in Cleveland, Ala., as shown by the bill, and to have compensation awarded for the purchase money paid and improvements placed on said lots by complainant, in case a specific performance of the contract could not be decreed. The contract sought to be enforced was made September 7 1887, between the complainant, Higley, and E. B. Powell, one of the defendants. By this contract E. B. Powell sold four lots in the town of Cleveland to complainant for $1,800, and agreed to take in payment therefor a "Decker & Son Extra Style piano, in mahogany case, and an exact duplicate of Mr McDaniel's piano;" and complainant agreed, within four months from "October 1, 1887, to erect a neat two-story residence on two of the lots, and within twelve months to build a residence house on the other two lots, to cost not less than $1,500." The complainant alleges that he performed his part of this contract by delivering the piano, and by building one of the houses, and that he was proceeding to build the other house, when he was stopped by respondents, who proceeded to dispossess him by an action of ejectment. In the answer of both of the respondents, this contract is admitted, but it is claimed that E. B. Powell was without authority to bind C. B. Powell by said contract; the lots belonging to C. B. Powell. The bill was filed on the 6th of March, 1888, within the 12 months within which the second house was to be built, but after the action of ejectment had been brought by the respondents. The bill averred that the said E. B. Powell was the agent of C. B. Powell, and had a power of attorney to sell the lots in question. The respondents deny that E. B. Powell had at the time a power of attorney to sell these lots, but each admit that he had had such power of attorney, but that it had been revoked; but it is shown that C. B. Powell had never given E. B. Powell any notice of the revocation, and E. B. Powell says that he thought he was acting under such power. There was testimony tending to show that C. B. Powell, on being informed of the trade, ratified it, as is shown by an exhibit to the bill, in which he changed the contract of sale by changing the numbers of the lots sold, by striking out some and inserting others. It is further shown that, after having been fully informed of the contract between Higley and E. B. Powell, C. B. Powell stood by and saw Higley expending his money in improving the property, and rather encouraged Higley in so doing, by showing him his lines, pointing out the lots, and telling him where to build. It is also shown that Higley paid a part of the purchase money, and was put in possession by C. B Powell. It is contended by the complainant that he met the obligation of the contract to deliver Powell the piano according to the specifications; but Powell denies this. It is shown by the complainant that, after the arrival of the piano, it was turned over to Powell, and was delivered by Higley, according to the instructions of C. B. Powell, to one Watkins, to whom Powell had traded it for brick. Additional facts are stated in the opinion. From the decree the defendants appeal, and assign the same as error.

Cabaness &Weakley and Smith & Lowe, for appellants.

Lane & White, for appellee.

STONE C.J.

Many grounds of demurrer were interposed in this case, questioning the sufficiency of the bill. The city court overruled the demurrer, and at the same time overruled the motion of defendants to dismiss the bill for want to equity. Those rulings are severally assigned as error. We think the bill sufficient, and find no error in either of these rulings.

It is also urged on behalf of appellant that there is a fatal variance between the allegations of the bill and the proof in the cause, and for that reason the decree should be reversed. We hold that the variances complained of are only incidental to the main inquiry, and that there is a substantial conformity of the proof to the allegations. There is no merit in either of the foregoing objections.

There is very great contrariety of testimony in this record. We think that upon all material questions, save one, there is not much difficulty in arriving at the true state of the facts. We summarize them, as we feel authorized to find them reasonably established: First. The legal title to the lots was in C. B. Powell, and he alone was authorized to make a contract of sale which, per se, would be binding under the statute of frauds. Second. That E B. Powell was the agent of C. B., his brother, to negotiate sales of the lots, with enlarged discretion, if not some expectant interest, which, as a rule, C. B. Powell would and did ratify and make binding. Third. That when C. B. Powell was informed of the sale to Higley, and its terms, he did not repudiate it outright, as being unauthorized, but that he so far sanctioned and approved it, though reluctantly, as to induce Higley to put improvements on the lots in value exceeding that of the lots in their unimproved state; and that he stood by and witnessed the erection of the improvements without remonstrance or objection. Forney v. Calhoun Co., 84 Ala. 215, 4 South. Rep. 153. Fourth. That when the piano arrived he still failed to disaffirm the contract,...