Dexter v. Ohlander

| Ala. | Nov 15, 1890

STONE, C. J.

— This is the second appeal in this case. Dexter v. Ohlander, 89 Ala. 262" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/dexter-v-ohlander-6513826?utm_source=webapp" opinion_id="6513826">89 Ala. 262. When the case was tried a second time in the Circuit Court, the rulings were in strict accord with the principles declared by this court on the former appeal. We are asked to reconsider and reverse what was then said.

On the former appeal it was said, “that the whole purpose and effort of the defendant [Dexter] was to get the lease out of the way, so that a sale might be effected, either by him, as the agent of the owner, or to him as the agent, as well as one of the syndicate; and the contract which he induced the plaintiff to enter into had the desired effect of removing the outstanding lease, and possession under it, out of the path of the pending negotiations.” This is a true summation of the transaction in its legal bearing, whether we view it from the standpoint of the writing alone, or aided by the surrounding circumstances. Ohlander was in possession of the premises under a five years lease. He bound himself to surrender that possession and the lease, the possession to be surrendered November 1, next afterwards, in consideration of one hundred and fifty dollars to be paid to him within ten days after the making of the contract — August 24, 1887. Not a word of conditionis expressed in the writings. The money, $150, was to be paid to Ohlander in ten days, and he was to surrender possession and all right to possession in a little over two months. And he kept his promise, and surrendered the possession. Is he to lose the benefit of his lease, and get no compensation for it ?

A written assurance was given him that, for the surrender of his lease, he was to be paid one hundred and fifty dollars in ten days. By whom to be paid ? Dexter signed the writing, and it gives no indication that he was contracting as agent. If he was agent of any one, it is not shown in the writing. Even if his intention had been to bind another as his principal, he failed to express that intention, and thereby bound himself.— Wood v. Brewer, 73 Ala. 259" court="Ala." date_filed="1882-12-15" href="https://app.midpage.ai/document/wood-v-brewer--brewer-6511618?utm_source=webapp" opinion_id="6511618">73 Ala. 259; Belisle v. Clark, 49 Ala. 98" court="Ala." date_filed="1873-01-15" href="https://app.midpage.ai/document/belisle-v-clark-hart--co-6508424?utm_source=webapp" opinion_id="6508424">49 Ala. 98; Jones v. Morris, 61 Ala. 518" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/jones-v-morris-6510218?utm_source=webapp" opinion_id="6510218">61 Ala. 518.

It is contended for appellant that the attendant facts — the surrounding circumstances attending the making of the written agreement in this case — show that Dexter did not bind, and did not intend to bind himself personally to pay the one hundred and fifty dollars. What were the surrounding' circumstances which the rule declares we may look to, in determining the meanifig of the writing? The syndicate desired to purchase the lot, and obtain early possession of the premises, for use as a house of religious worship. This could not be accomplished,- by reason of Ohlander’s occupancy under a lease, having several years to run. To carry out their wish and aim, Ohlander must surrender the lease and vacate the premises. These were the attendant facts, this the situation. Chambers v. Ringstaff, 69 Ala. 140" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/chambers-v-ringstaff-6511095?utm_source=webapp" opinion_id="6511095">69 Ala. 140. These conditions, or surrounding circumstances, if proved, shed no light on the interpretation of the writings. They still remain an absolute stipulation that Ohlander shall be j>aid one hundred and fifty dollars in ten days, and that he shall surrender his lease and the possession of the premises by the 1st day of November then next.

It was further sought to prove by testimony aliunde that, when the papers were executed, the trade between Lawall, the owner, and the syndicate had not been perfected, and that Ohlander knew it. Perhaps this too was permissible, but it does not aid the defense set up. A stilpfurther step was necessary, and the defense sought to take it. That step was indispensable to the defense relied on. The offer was to prove by oral testimony that Ohlander was not to be paid the one hundred and fifty dollars, unless the trade between Lawall and the syndicate was consummated. That would have been to vary the terms of the writing by parol proof — to incorporate in the written contract, by oral testimony, a clause that is palpably repugnant to the writing. This is inadmissible under all the authorities. — 3 Brick. Dig. p. 413, §§ 97, 98, 102; Day v. Thompson, 65 Ala. 269" court="Ala." date_filed="1880-11-15" href="https://app.midpage.ai/document/day-v-thompson-6510622?utm_source=webapp" opinion_id="6510622">65 Ala. 269.

The complaint, as amended, simply avers that Ohlander surrendered the possession, without stating'to whom. The proof sustains this averment. His contract, both in letter and spirit, bound him only to vacate the premises — to get out of the way, and the proof shows that he did that. There is nothing in appellant’s augument directed to this feature of the case.

Affirmed.