195 Ala. 588 | Ala. | 1915
What was said by Stone, J., in Pike v. Pettus, 71 Ala. 99, Í00, is conclusive of this case: “In Waterman on Specific Performance, § 165, it is said: ‘The parol agreement must be clearly proved, in order to take it out of the statute by part performance. * * * Equity will not enforce specific performance of a parol agreement, if the evidence of such agreement is contradictory.’ And in 1 Sto. Eq. Jur., § 762, it is said: ‘In order to make the acts such as a court of equity will deem part performance of an agreement within the statute, it is essential that they should clearly appear to be done solely with a view to the agreement within the statute, it is essential that they should clearly appear to be done solely with a view to the agreement being performed. For,- if they are acts which might have been done with other views, they will not take the case out of the statute, since they cannot properly be said to be done by way of part performance of the agreement.’ After mentioning certain acts which are insufficient, this author proceeds to say that it is not enough when the proof only shows acts of an equivocal nature, but that, to be deemed a part performance, the acts ‘should be so clear, certain, and definite in their object and design as to refer exclusively to a complete and perfect agreement of which they are a part execution.’ ”
To entitle a complainant to specific performance of such contracts, the terms must be distinctly alleged, and established by clear and definite testimony; and, if the proof fails to establish the contract as alleged, or if any of its terms are left in doubt or uncertainty, specific performance should not be decreed.— Aday v. Echols, 18 Ala. 353, 52 Am. Dec. 225; Goodwin v. Lyon, 4 Port. 297; Ellis v. Burden, 1 Ala. 458.
But, if the evidence of Will White is admitted, it is denied by many witnesses and circumstances, and for the court to grant the relief prayed might achieve a result never contemplated by the parties, and might enforce a contract never made. Apropos to this is the dictum of Lord Erskine (13 Ves. 77, 79), as follows: “If a court of equity can compel a party to perform a contract substantially different from that which he entered into, and proceed upon the principle of compensation, as it has compelled him to execute a contract substantially different, and substantially less than that, from which he stipulated, without some very distinct limitation of such jurisdiction, having all the pre
We do not desire to be committed to the proposition that the complainant can maintain this bill against these respondents. We leave that question undecided, for the reason that, if the bill could be maintained, the proof does not warrant the relief prayed, or any other appropriate relief, against these respondents, appellees here.
Affirmed.