Schock v. Underwood

• Decision Date: 21 January 1954
• Docket Number: 1 Div. 523
• Citation: 70 So.2d 264,260 Ala. 294
• Parties: SCHOCK et al. v. UNDERWOOD et ux.
• Court: Alabama Supreme Court

Page 264

70 So.2d 264

260 Ala. 294

SCHOCK et al. v. UNDERWOOD et ux.

1 Div. 523.

Supreme Court of Alabama.

Jan. 21, 1954.

Johnston, McCall & Johnston, Mobile, for appellants.

Thos. F. Sweeney and Wm. H. Cowan, Mobile, for appellees.

PER CURIAM.

This is an appeal from a final decree granting relief to the purchasers of a house and lot in Mobile County and reducing the amount specified in the contract by $500, holding that a certain newspaper advertisement, dated August 27, 1947, constituted a representation that said house would contain bathroom fixtures of the value of $500, which were not installed.

There was a written contract entered into between the parties dated September 2, 1947, and was signed by both parties. It purported to be complete within itself, and did not refer to any other document to supplement it.

Appellees as the purchasers inspected the house which was incomplete--not having interior doors, not painted inside and without bathroom fixtures.

The bill of complaint sought a reduction of the contract price on account of those incomplete conditions. It alleges representations were made by the sellers, appellants, that those incomplete conditions would be supplied and installed. It does not allege that such representations were a feature of the written contract, or that they were fraudulently made with no intention at the time of complying with them. The bill prays that the court ascertain the amount justly due under the contract and require respondents to account to complainants for such amount as complainants have overpaid the purchase price and for general relief. It does not offer to do equity.

The trial was had by testimony given in open court before the trial judge.

The court overruled the demurrer which included the general grounds and that the remedy at law is adequate. Error is assigned in that respect and also in respect to the final decree.

A bill does not contain equity which merely seeks a reduction in the amount of the purchase price of land on account of representations made. The remedy at law is adequate. To give it equity such a bill must seek specific performance of the contract or some other equitable relief. Bell v. Thompson, 34 Ala 633; Williams v. Neal, 152 Ala. 435, 44 So. 551; Neal v. Williams, 168 Ala. 310, 53 So. 94; see Williams v. Neal, 147 Ala. 691, 40 So. 943; Catanzano v. Hydinger, 233 Ala. 116, 170 So. 214. The bill is wanting in equity for not complying with the rules applicable to such a situation, and the demurrer should have been sustained.

The relief granted in the final decree of the court merely ascertained that the balance of the purchase price should be reduced by the sum of $500 on account of the failure to supply the bathroom fixtures which, as stated above, the court found should have been supplied by the appellants and decreed there was a balance of the purchase price of $368.68, and that appellants have in reserve for taxes and insurance the sum of $8.23, and further that they pay the costs of the suit. On the bill the court was without power to render such decree, as pointed out in the cases, supra.

Moreover, the court was in error in holding that the purchase price should be reduced by that amount, assuming that the court had jurisdiction to ascertain the balance of the purchase price upon which to predicate a decree for specific performance. The court was of the opinion that an advertisement which appeared in the paper as of August 27, 1947, was controlling in respect to that question. That advertisement is as follows:

'Franklin Place

'Garrison Avenue: Your Dream House has Come True. An exclusive colored subdivision, paved streets, bathrooms, running water, electricity. Lots selling $50 down, $25 per month. 50 houses already being erected in this subdivision. Buy now. J. A. Schock, 815 First Nat'l. Bank Bldg. Mobile, Ala.'

The advertisement appeared prior to the execution of the contract between the...