Sadler v. Radcliff

• Court: Supreme Court of Alabama
• Citation: 215 Ala. 499,111 So. 231
• Docket Number: 1 Div. 422
• Parties: SADLER v. RADCLIFF.
• Decision Date: 20 January 1927

111 So. 231

215 Ala. 499

SADLER
v.
RADCLIFF.

1 Div. 422

Supreme Court of Alabama

January 20, 1927

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Bill in equity by R.H. Radcliff against R.A. Sadler. From a decree for complainant, respondent appeals. Affirmed. [111 So. 232]

Inge & Bates, of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

THOMAS, J.

The bill is for specific performance of a sale of land and sought indemnity against the wife's inchoate dower interest in the event she refused to join in the deed with her husband, in the event the latter was required to convey.

It is admitted that Espalla, Jr., & Co. made the sale of the property on the conditions indicated in the written authority given by Sadler, and that the former evidenced that sale in writing as indicated.

It is pertinent to inquire whether Espalla, Jr., & Co. had the authority to sell and evidence the same in writing, as was done so to bind Sadler under the statute of frauds (Code, § 8034), and whether the writing sufficiently described the land made the subject of the contract. After the execution of the instrument by Espalla, Jr., & Co., defendant wrote that firm:

"I wish to recall my offer for the sale of my property on Mon Luis Island."

This court takes judicial knowledge of Mobile Bay, its shores, and islands. Kay & Son v. Ala. Cotton & Grain Co., 211 Ala. 454, 100 So. 863; Hodge v. Joy, 207 Ala. 198, 92 So. 171; McGowin, etc., Co. v. Camp, etc., Co., 16 Ala.App. 283, 77 So. 433.

In Campbell v. Lombardo, 153 Ala. 489, 44 So. 862, the bill was for specific performance of a contract, receipt for part payment describing the lot, reciting that:

"Upon delivery of the deed by said Campbell the said Mrs. Lombardo is to pay the balance of the $1,700, namely $1,690. [ Signed] Hattie Lombardo. Jones & Rison, Agents for Daniel Campbell."

The court said that, when the case was considered on first appeal, it was held:

"That the contract of sale entered into between 'Jones & Rison,' as agents, and the appellee Lombardo, was wholly complete and such as could be specifically enforced in equity." Id. (Ala.Sup.) 39 So. 573, not [[officially] reported.

In view of the argument of appellant's counsel, we have examined the original record in the Campbell-Lombardo Case, and note that the third ground of demurrer to the amended bill was:

"Said bill seeks to enforce a contract for the sale of real estate, which shows on its face that it is void under the statute of frauds."

And in Minge v. Green, 176 Ala. 343, 58 So. 381, demurrer to the effect that the bill contains averments as a basis of oral testimony adding to a writing to explain the meaning or intention of the parties not revealed by the written agreement was sustained by the trial court, and the decree was reversed--"sustaining the demurrer was erroneous" held by the majority.

It was declared in White v. Breen, 106 Ala. 159, 168, 169, 19 So. 59, 60 (32 L.R.A. 127), that an agent who has written authority to sell on specified terms is one lawfully authorized to make a note or memorandum of sale within the statute of frauds. There the principal in writing said:

"I will accept the trade if one hundred dollars are paid down as a security--hope you can make a trade."

The agent closed by receipt:

"Sheffield, Ala., Dec. 15, 1890.

"Received from Mrs. Mary T. White one hundred dollars on account of purchase of two houses and lots on Annapolis avenue and one lot on Montgomery avenue belonging to Albert Breen. A.J. Moses, Agent." [111 So. 233] The vendor attempted repudiation for failure of the wife's signature. In that case the court observed that--

"The agent, keeping within the scope of his authority," had the right to "make the contract and execute the necessary written evidence binding his principal to its performance." White v. Breen, 106 Ala. 159, 169, 171, 19 So. 59, 61 (32 L.R.A. 127); Bunch v. Garner, 208 Ala. 271, 94 So. 114.

The case of Ledbetter v. Walker, 31 Ala. 175, was where under the old statute verbal authority to an agent to sell was sufficient (Ledbetter v. Walker, 31 Ala. 175; Robinson v. Garth. 6 Ala. 204, 41 Am.Dec. 47), whereas under the later statutes written authority to sell was necessary to authorize an agent to sell real property and to make binding memorandum of contract of sale.

And in Jenkins v. Harrison, 66 Ala. 345, 353, 354, 355, this statutory change was adverted to and the observation made:

"The purpose and object of the statute being no more than the requisition of written evidence of the substance of the contract, signed by the party to be charged, so that he may not be subjected to the mischief which could follow from mere oral evidence; the purpose and object, and the words of the statute, are all satisfied, 'whenever there exists, under the hand of the party sought to be charged, a written statement, containing, either expressly, or by necessary inference, all the terms of the agreement--that is to say, the names of the parties, the subject-matter of the contract, the consideration, and the promise, and leaving nothing open to future treaty. This, therefore, is sufficient to satisfy the statute; and provided this be found, no formality is required; nor does it signify at all what is the nature or character of the document containing such written statement--whether it be a letter written by the party to be charged to the person with whom he contracted, or to any other person, or a deed, or other legal instrument, or an answer to a bill, or an affidavit in chancery, in bankruptcy, or in lunacy.' Fry on Specific Perf. § 344." Ezzell v. S.G. Holland Stave Co., 210 Ala. 694, 99 So. 78; Bunch v. Garner, 208 Ala. 271, 274, 94 So. 114.

It is insisted that Espalla, Jr., & Co. was a mere broker rather than an agent with authority to sell; that is, was a real estate agent merely to find a purchaser and report to the owner. The subject is discussed in 1 Mechem on Agency (2d Ed.) § 798, saying, among other things, that if it is entirely clear from the correspondence, or negotiations between the parties is such as to create the authority within the statute of frauds, to make a binding contract to sell, such effect will be given, notwithstanding the phraseology used, or the authorization be not in formal terms. The test is, Does the writing or writings constituting the agency...