Weeden v. Asbury

• Citation: 138 So. 267,223 Ala. 687
• Decision Date: 05 November 1931
• Docket Number: 8 Div. 257.
• Parties: WEEDEN v. ASBURY.
• Court: Supreme Court of Alabama

138 So. 267

223 Ala. 687

WEEDEN v. ASBURY.

8 Div. 257.

Supreme Court of Alabama

November 5, 1931

Rehearing Denied Dec. 17, 1931.

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Action by Sophia Asbury against J. D. Weeden. From a judgment for plaintiff, defendant appeals.

Affirmed.

Charge in effect affirmative charge held properly refused where evidence presented jury questions.

It appears that on April 21, 1924, defendant sold to plaintiff two certain lots of land, executing to plaintiff a lease sale contract providing that when all of the purchase money had been paid a warranty deed conveying said lots to her would be executed. At the time of executing said contract a letter was written by defendant to plaintiff reciting: "I hand you herewith contract covering purchase of lots" described and stating the terms of purchase. And:

"I have great faith in the rapid development of the Muscle Shoals district and so strongly believe in the enhancement in value in Weeden Heights that I feel confident you will be able to re-sell these lots for a profit.

"However should you not have an opportunity [offer] within twelve months from this date for the purchase of these lots at and for the price you are paying for them, plus 8% interest, I hereby propose and agree that if on April 21st, 1925, you have not sold these lots and are at that time dissatisfied with your purchase I will refund the amount you have paid plus 8% interest on same from the date of each payment to the 21st day of April, 1925."

At the same time a like contract for eight other lots was executed and was delivered to plaintiff along with a letter in the same terms as that set forth.

The following charges were refused to defendant: Charge No. 3. "I charge you gentlemen of the jury that the acceptance by the plaintiff of the deed from the defendant is a complete satisfaction of any antecedent agreement between plaintiff and defendant before the execution of the deed, and any such agreements are null and void and cannot be considered by you and is no defense to this cause."

Charge No. 5. "I charge you gentlemen of the jury that it is immaterial in this case whether Mr. Beck or Mr. Weeden was the real party in making the offer to plaintiff in the settlement of the contract of sale between plaintiff and defendant, if the offer was really made and the cash consideration was tendered to plaintiff, then plaintiff refused to accept the said offer of Mr. Beck or Mr. Weeden, and if this was done by the plaintiff it is no defense to this case; and if you are reasonably satisfied from the evidence that thereafter the settlement was made by plaintiff and defendant in which plaintiff accepted a deed from defendant and executed a mortgage to him for the balance of the purchase money then you must find for the defendant."

Charge No. 6. "I charge you gentlemen of the jury that at the time of the execution of the deed by the defendant to the plaintiff, the plaintiff is bound by all the acts of her attorneys and when she accepted the deed from the defendant the original contract of purchase between plaintiff and defendant is fulfilled and the said contract is null and void and your verdict must be for the defendant."

Charge No. 7. "I charge you gentlemen of the jury that if the defendant at the time of the execution of the deed to plaintiff and the delivery thereof to her attorney made no false representation to the plaintiff or to her attorney, your verdict must be for the defendant."

Charge No. A. "I charge you gentlemen of the jury that if you believe the evidence you must find your verdict for the defendant on Count 3 of defendant's answer."

Simpson & Simpson, of Florence, for appellant.

A. A. Williams, of Florence, for appellee.

BROWN J.

Special assumpsit for breach of stipulation to refund money paid by the purchaser under conditional sale contracts relating to ten lots in the third addition to Weeden Heights near Florence, Ala.

The first count of the complaint, to which demurrer was confessed by the plaintiff, was for the breach of a stipulation in contract made on April 21, 1924, applying to all ten of said lots.

The amended complaint consisting of two counts relates to contracts of like purport of the same date in respect to the same property; the second count being for the breach of a special stipulation as to eight of said lots, and the third as to the other two.

The amendment was permissible, and the motion to strike and demurrer taking the point that the amendment worked an entire change of the cause of action were properly overruled. Code of 1923, § 9513; Springfield Fire & Marine Ins. Co. v. De Jarnett, 111 Ala. 248, 19 So. 995; Pearson v. City of Birmingham, 210 Ala. 296, 97 So. 916; First National Bank of Gadsden v. Morgan, 213 Ala. 125, 104 So. 403.

The matters alleged in plea 2 were in negation of the averments of the complaint, and were admissible under the general issue. The motion of plaintiff to strike plea 2 was therefore granted without error to reverse.

The substance of the averments of defendant's plea 3-accord and satisfaction-is that subsequent to the execution of the contract for the breach of which the plaintiff sues, the defendant executed and delivered to the plaintiff a warranty deed to the lots purchased by her in...