Vandiver v. Reynolds

• Decision Date: 18 January 1912
• Citation: 57 So. 462,174 Ala. 582
• Parties: VANDIVER v. REYNOLDS.
• Court: Alabama Supreme Court

57 So. 462

174 Ala. 582

VANDIVER v. REYNOLDS.

Supreme Court of Alabama

January 18, 1912

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by Walker Reynolds against H. F. Vandiver. Judgment for plaintiff, and defendant appeals. Affirmed.

Ray Rushton, William M. Williams, and Hill, Hill & Whiting, for appellant.

Letcher McCord & Harold, for appellee.

MAYFIELD J.

But two questions are insisted upon by appellant for a reversal of the judgment of the lower court. These questions are thus stated in brief of his counsel:

First. "An action will not lie at law to recover the purchase price of real property, unless the vendor has executed and delivered a deed to the vendee, and, until there has been a conveyance of the title to the vendee, the vendor's measure of damages is the difference between the contract price and the value of the land at the time of the breach."

Second. "Plaintiff's failure to allege performance on his part, or an offer to perform, or a readiness and willingness to perform, was fatal to counts 3 to 6, inclusive, of the complaint, not only as counts for the recovery of the purchase money, but also for damages, if they could be construed as counts for damages, and not for purchase money."

In order to clearly understand the propositions thus asserted by appellant, it will be necessary to state the case as made by the record, and to which the propositions are sought to be applied.

The appeal is on the record alone, and only the rulings on demurrers to counts 3, 4, 5, and 6 are sought to be reviewed.

It appears from the pleadings that prior to the time of this suit appellant and appellee were partners, and as such purchased a large plantation, and the necessary live stock implements, and supplies wherewith to operate it as a farm that on the 23d day of November, 1910, they made a contract as to the purchase, which was in words and figures as follows: "State of Alabama, Montgomery County. This agreement made and entered into on this, the 23d day of November, by and between H. F. Vandiver, party of the first part, and Walker Reynolds, party of the second part, witnesseth: That for and in consideration of the sum of forty-nine hundred and fifteen dollars to be paid to the party of the second part by the party of the first part, on January 15, 1910, the party of the second part does bargain, sell and convey on the above-mentioned date to the party of the first part, one half (1/2) interest in the farm now owned by H. F. Vandiver and Walker Reynolds, jointly, the said party of the first part to assume all liabilities of the firm of Vandiver & Reynolds, and also to assume the note now due at the Farley National Bank for three thousand dollars ($3,000.00). Signed by the party of the second part, and endorsed by the party of the first part. Same to be turned over to the party of the second part as soon as agreement is terminated. H. F. Vandiver. Walker Reynolds. Witness. * * *"

Appellee sued appellant on account of this contract. The complaint contained six counts. The first two were common counts on an account stated. The third, fourth, fifth, and sixth declared specially upon the contract. The third count, however, merely declared generally, as for the purchase price of a half interest in the farm. The fourth attempted to set out the contract in substance only, while the fifth and sixth set out the contract in hæc verba.

It is alleged in the fifth and sixth counts that the phrase "January 15, 1910," should read, "January 15, 1911." The defendant interposed demurrers to each of the special counts, assigning a great number of grounds. All the grounds here insisted upon are those embraced in the two propositions of law first above stated, which are taken from the brief of counsel for appellant. These two propositions find no field for operation in, nor application to, the case made by the pleadings. This is not an action by a vendee against a vendor for failure to convey or to otherwise perform the contract of sale; nor is it a suit by the vendor against the vendee to recover damages for failure or refusal to perform the contract of sale. It is purely and simply an action by the vendor against the vendee for the...