White v. Breen

• Decision Date: 12 April 1894
• Citation: 19 So. 59,106 Ala. 159
• Parties: WHITE v. BREEN. [1]
• Court: Alabama Supreme Court

19 So. 59

106 Ala. 159

WHITE v. BREEN. ^[1]

Supreme Court of Alabama

April 12, 1894

Appeal from circuit court, Colbert county; H. C. Speake, Judge.

Action in attachment by Mary T. White against Albert Breen to recover damages for breach of a contract for sale of real estate. There was a judgment for defendant, and plaintiff appeals. Reversed.

Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the following charges: (1) "If the jury believe all the evidence in this case, they should find for the plaintiff." (2) "If the jury believe from the evidence that Breen, the defendant authorized A. J. Moses to sell the property in Sheffield Alabama, described in the complaint, at a sum not less than $5,000, and the said Moses, as such agent for the defendant found a purchaser in the plaintiff, and stated the terms of plaintiff's offer to the defendant by letter to the defendant, to which the defendant replied in writing accepting the offer, then the jury should find for the plaintiff." The court refused to give each of these charges, and to the refusal to give them the plaintiff duly excepted. And the plaintiff likewise excepted to the giving of the following charges, as requested by the defendant "If the jury believe the evidence in the case, they will find for the defendant."

Thos. Seay, for appellee.

HEAD J.

The question in this case is whether the writings appearing in evidence constitute such a memorandum of a contract of sale of the lots by Breen to Mrs. White as satisfies the statute of frauds. Breen was the owner of lot numbered 4 in block numbered, 72, situated on Montgomery avenue, and lots numbered 4 and 5 in block numbered 96, situated on Annapolis avenue, in the city of Sheffield, Colbert County, Ala. He owned no other property in that city. On November 6, 1890, he wrote from New Kingston, Pa., to W. H. Ruffin, Esq., of Sheffield, as follows: "Would you be kind enough to hunt up a purchaser for my property in Sheffield, Ala.? I will sell at a reasonable price. Hoping to hear from you on the subject soon, I remain yours truly, Albert Breen." Ruffin replied that he was not a real-estate agent, but, if he (Breen) desired, he would secure the service of an agent in whose hands he would place the property for sale, to which he received the following reply, written from New Kingston, November 13, 1890: "Your favor of the 8th came to hand last evening. I wish you would please secure the services of some good reliable person to sell my property at any sum above five thousand dollars ($5,000), nothing less. *** Please start the sale as soon as you can, and oblige yours truly, Albert Breen." Thereupon Ruffin placed the above-described lots (which, as we have said, were the only property owned by Breen in Sheffield) in the hands of A. J. Moses, a real-estate agent, and so notified Breen by letter. In the latter part of November, 1890, Breen came to Sheffield, when Ruffin introduced him to Moses as the person in whose hands he had placed the sale of the property. Thus, the writings to this point, without the aid of extrinsic evidence, place Breen's property in Sheffield, Ala., by his act, in the hands of Moses, as his agent, for the purpose of finding a purchaser. On December 9, 1890, Moses wrote Breen, from Sheffield, as follows: "I have a customer who will take the property, viz. lot on Montgomery Ave. and the two lots and improvements on Annapolis Ave., for $5,000, at $1,666.66 payable January 1st, 1891, balance in 12 months. He will, if you desire, pay down $100 to close the trade; this sum to be deducted from cash payment. Reply at once. Yours, etc., A. J. Moses." To this letter Breen replied as follows: "Birmingham, Ala., December 14th, 1890. A. J. Moses, Esq., Sheffield, Ala.: I returned this morning from Greensboro, Ala., where I have been on business. Your letter of Dec. 9th was handed to me on my arrival here this morning. I regret very much, indeed, that I was not here when it came. I will accept the trade if one hundred dollars are paid down as a security. Hope you can make a trade with same party. Hoping to hear from you soon on the subject. Address as before. Very truly, Albert Breen." To which Moses replied as follows: "Sheffield, Ala., Dec. 16th, 1890. Albert Breen, Esq.-Dear Sir: I have closed with Mrs. W. S. White for the sale of the two houses on Annapolis avenue and lot on Montgomery avenue for $5,000, as follows: $100 cash; $1,566.66 payable January 1st, 1891; $3,333.33 payable in twelve months. I wish you to have deeds forwarded so as to execute new deeds and mortgage. The former will have to be sent to Mrs. Breen for her signature, so you had better not delay forwarding papers to my address, and state where new deeds will reach you for signature. I hold $100 to confirm trade. Very truly, A. J. Moses." To this Breen replied, by telegraph, as follows: "Birmingham, Ala., Dec. 17th, 1890.9:45. To A. J. Moses: Yours all received, and contents noted. Have sent for deeds. Shall forward as soon as received. Let me know if mortgage is to bear interest. See if Ruffin got letter for me at Cleveland House, and forward the same. Albert Breen." To which Moses replied by letter, as follows: "Sheffield, Ala., Dec. 17th, 1890. Mr. Albert Breen.-Dear Sir: Your telegram received. Mr. Ruffin forwarded your letter yesterday. While nothing was said in reference to interest on deferred payment, it is customary, and I so understand it, as custom in every case shows deferred payments bear interest, particularly where property is improved and producing an income. Very truly, A. J. Moses." On the next day, December 18th, Breen, by a message to Moses, through a letter to Ruffin, repudiated, or attempted to repudiate, the trade, on the ground that his wife would not sign at such a low figure, to which Moses replied by letter on the 20th, insisting that he (Breen) was bound, and urging him to carry out the contract. On the 26th, he wrote Moses, expressing a willingness to close the trade by executing the papers and accepting a mortgage, but exacting 8 per cent. interest on the deferred payments, to which he thereafter adhered. Mrs. White refused to submit to this exaction of interest, and brought this action to recover for the alleged breach of agreement to sell. When Moses made the bargain with Mrs. White relied on, she paid him $100 in cash, and he executed to her a receipt, as follows: "Sheffield, Ala., Dec. 15th, 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."

The foregoing are the material facts. Upon them, two questions arise: (1) Did Moses, as agent of Breen, make a contract of sale binding upon his principal? (2) Did Breen himself make such a contract binding him to its performance? The first question subdivides itself into two inquiries, viz.: (1) Was Moses lawfully authorized, in writing, by Breen to make the contract? (2) If so, do the writings show that, in pursuance of such authority, he made a contract, evidenced by some note or memorandum thereof, in writing, expressing the consideration, and subscribed by him?

The principles of law growing out of our statute of frauds, in reference to contracts for the sale of land or any interest therein, have been often and fully discussed in our adjudications. It is well settled that the form of the writing required by the statute is not material. The contract may be evidenced by one writing or more. It may be shown entirely by written correspondence. Whatever form the agreement may assume, if the writing or writings, viewed as a whole, constitute, in essence or substance, upon their face a note or memorandum in writing, subscribed by the party sought to be charged, or his agent lawfully authorized in writing, showing who the contracting parties are, the subject-matter of the sale, and the consideration, the statute is satisfied. Jenkins v. Harrison,; 66 Ala. 357; Carter v. Shorter, 57 Ala. 251; Knox v. King, 36 Ala. 369. In cases of single instruments their sufficiency is generally of easy determination. Greater difficulties arise when, in cases like the present, the required evidence of the contract is sought to be produced by the adjustment and adaptation to each other of several letters and writings containing the negotiatings of the parties, and the supposed culmination of these negotiations in a binding agreement of sale. In cases of this character it is certainly not essential that the party charged should have subscribed each paper forming a link in the chain of evidence. If the several writings, upon their faces, viewed in the light of the situation and circumstances of the parties at the time they were written, clearly relate to, and connect themselves with, each other, and when their contents are adjusted and adapted to each other, according to their reasonable and practical import, evolving, in form and order, the...