Smith v. Sherman

• Decision Date: 30 November 1911
• Citation: Smith v. Sherman, 174 Ala. 531, 56 So. 956 (Ala. 1911)
• Parties: SMITH v. SHERMAN.
• Court: Alabama Supreme Court

56 So. 956

174 Ala. 531

SMITH v. SHERMAN.

Supreme Court of Alabama

November 30, 1911

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action for breach of contract by Hugh G. Smith against J. S Sherman. From a judgment of nonsuit, taken after the sustaining of demurrers to the complaint, plaintiff appeals. Affirmed.

The complaint is as follows:

Count 2: "The plaintiff claims of the defendant the sum of $5,000.00 damages for the breach of a contract between plaintiff and defendant entered into on the 2d day of September, 1909, in words and figures, as follows:

" 'State of Alabama, Houston County. Know all men by these presents, that this agreement, made and entered into this the 2d day of September, 1909, by and between J. S Sherman, Houston county, Alabama, party of the first part and Hugh G. Smith, Houston county, Alabama, party of the second part, witnesseth: That for and in consideration of one and 00/100 ($1.00) dollars, to the first party in hand paid, acknowledged by the party of the second part, the receipt of which is hereby acknowledged, the first party hereby agrees to buy from the second party, his heirs and assigns, the following described lands and timber situated in the state of Florida, said lands being partly in fee simple and partly in timber leases, but all subject to any turpentine leases now outstanding against the said timber, to wit, 3,520 acres, mostly in Jackson county, Florida, but some of which is in Calhoun and Washington counties, Florida. Said timber and lands situated near Compass Lake, Florida, on the Atlanta & St. Andrews Bay Railroad, and being described as that land and timber indicated in a certain option, held by second party from owners and described on map hereto attached. Said sale to the first party is hereby confirmed to second party, based on the aforementioned option. The price and terms which first party agrees to buy from second party, his heirs or assigns, is for the sum of $25,000, payable as follows: $5,000.00, Nov. 1, 1909; $3,000.00, Sept. 1, 1910; $3,000.00, Sept. 1, 1911; $3,000.00, Sept. 1, 1912; $3,000.00, Sept. 1, 1913; and $3,000.00, Sept. 1, 1914. All deferred payments to draw interest from date at 8% per annum payable annually.

" 'Map Exhibit of Lands Described in Map.

" '[Here follows description of land by government subdivision.]'

"Plaintiff avers that the foregoing lands herein described are the lands described in said map which was attached to the foregoing contract and made a part thereof. Plaintiff avers that since the execution of his contract with defendant he has ever been willing, ready, and able to comply with his part of said agreement and to make to the defendant the conveyance provided for in said contract of the lands therein described; that defendant has wholly failed and refused to carry out his part of said agreement, or any part thereof, to the damage of plaintiff as aforesaid."

Count 3: Same as 2 down to the line, "Map Exhibit of Lands Described in Map," with this additional addenda to the contract: "Subject to compliance with all verbal agreements as to length of leases, both timber and turpentine, 40 acres of land, and all other verbal agreements. [ Signed] J. S. Sherman." Then follows description of land by government subdivision. "Plaintiff avers that the foregoing lands herein described are the lands described in said map, which was attached to the foregoing contract and made a part thereof. And it avers that the verbal agreement as to the length of leases, both timber and turpentine, are as follows, to wit: As to the timber, the leases ran mostly from eight to twelve years; as to the turpentine, plaintiff was to see all the parties holding turpentine leases as referred to in plaintiff's option, and use his influence to get same delivered to Sherman earlier, if possible, than the terms as provided for in said leases and options. Plaintiff avers that the agreement as to the 40 acres of land is as follows: He was to get same, if possible, so that defendant should have a mill site along the right of way of the Atlanta & St. Andrews Bay Railroad. Plaintiff avers that said addenda to said contract signed by the defendant was accepted by the plaintiff, and plaintiff avers that he complied with each and every term of said addenda to said contract." The count then concludes as the second count.

Demurrers assigned are as follows: (3) "The alleged contract declared on is void, because too indefinite and uncertain, in this: Said count fails to sufficiently describe the property which is the subject-matter of the contract, in that it fails to set forth which portions of the land are in fee simple and which portion in timber leases." (4) "Because said count fails to allege that plaintiff ever offered to comply with the contract declared on by tendering to defendant a deed in compliance with said contract and within the time therein specified." (7) "Because said writing declared on does not constitute the complete contract, and is void under the statute of frauds, if resting partly in parol."

A. E. Pace and W. L. Lee, for appellant.

Espy & Farmer, for appellee.

SIMPSON J.

This is an action by appellant for breach of a contract to purchase land. The first count was withdrawn, demurrers were interposed to the second and third counts, which were sustained, and by reason of said ruling a nonsuit was taken, and this appeal is from said ruling of the court.

Mr. Warvelle states the rule to be that: "He who seeks to enforce a contract as against others must be himself without fault, and ready and willing to comply. In furtherance of this rule, it has often been held that the party who seeks the remedy of specific performance must first tender a performance by the offer of a properly executed deed by the vendor, or by a tender of the purchase money by the vendee." These principles "have equal reference to either party to the contract, and, as a general rule, the vendor should tender a deed and demand payment before bringing a bill for specific performance." 2 Warvelle on Vendors, §§ 26, 27, pp. 773, 775.

He also states that: "It is incumbent on the vendor, in an action for damages for breach of contract, to show that he has been ready and willing, or has offered, to perform on his part, or that the vendee has done some act which dispenses with a performance; and it will be a sufficient performance or offer to perform, on his part, to enable him to maintain the action, that he has tendered to the vendee a sufficient deed." 2 Warvelle on Vendors, p. 963, § 4.

"Although it was formerly held otherwise, there is now no proposition more firmly established in the law than that, in a contract for the sale of real estate, if the covenants are mutual and dependent, neither party can sue without a performance, or the offer to perform, on the one part, as a condition precedent to the right to insist upon a performance, on the other part. ...