Phelan v. Tomlin, 51 So. 382

Phelan v. Tomlin

51 So. 382 | Ala. | 1910

ANDERSON, J.

“When a writing fails to express some important element of the contract, which the parties mutually intended it should express, or expresses it differently from what they had mutually agreed it should express, and this failure or difference of expression is the result of mistake or fraud, chancery, on clear, proof, will reform the contract, to make it effective as the parties mutually intended.” — Clark v. Hart, 57 Ala. 394, and authorities there cited: Folmar v. Lehman-Durr Co., 147 Ala. 477, 41 South. 750. It is evident that the negotiations between the complainant W. B. Tomlin and the agent of the respondents from first to last contemplated an extension of Fifteenth avenue as per the change in location, through block 26; the only point of difference being as to the definiteness of the time for making said extension through said block 26, The sole or chief consideration moving the complainants to consent to the change, .and the closing of Fifteenth avenue, as it then stood, was that the change would also apply to block 26, immediately in front of their property; that they would get title to the old avenue in front of their lot, with a right to purchase the strip between the old and new avenue, under terms set *388out, so as to give them a frontage on the new avenue. In other words, all benefit to be derived by the complainants, as a consideration for consenting to a closing up of the avenue through block 23, was dependent upon the extension of the avenue as changed through block 26. Indeed, the contract, while not a positive obligation to malee the extension, is so worded as to he very pursuasive that such extension was mutually contemplated by all parties thereto, and was susceptible of being so construed by Tomlin, and which seems to have been the construction given it by his lawyer, as the only objection made to same was that it failed to specify a definite time for making the extension, and which Mr. Weakley declined to insert, stating his reasons for not doing so, but giving his opinion that it would be done in a short time, or within a year. It was, therefore, the understanding of the parties that the contract either did or should contain a positive obligation to make the extension, not at a definite time, because Weakley had declined to make it specify the time; and it was executed in the face' of this declination, and the law would, therefore, fix a reasonable time. — Griffin v. Ogletree, 114 Ala. 343, 21 South. 488; Wolfe v. Parham, 18 Ala. 441; Cotton v. Cotton, 75 Ala. 345.

It is next insisted, that there is no mutuality as to so much of the contract as requires a conveyance of the strip, as the complainants would have the option to decline, and could not be forced to take it for the price fixed. This may be, but does not render the contract wanting in mutuality, as it must be taken in it,s entirety, and it did require the complainants to join in a consent to close that part of the old avenue through block 23, and in fact recited that they had done so. — Merritt v. Coffin, 152 Ala. 474, 44 South. 622; Pollard v. Maddox, 28 Ala. 321; Comer v. Bankhead, 70 Ala. 136.

*389We may concede tlie contention of appellants’ counsel, that, in ascertaining the complainants’ damages, it should be raised on the difference' between the value of the strips between the execution of the contract and the breach of same; but we cannot say that the breach occurred within a year after the execution of the contract. (We think, however, the complainants would be entitled to the full value of such of the old avenue as respondents agreed to convey him.) Weakley did not agree to any definite time, and that it would be done within a year was but his opinion. The law, therefore, fixes a reasonable time, and it was for the register to determine when the breach occurred, and which could have been between the filing of the bill and the execution of the contract; and we must assume that he fixed the breach within this period, and found accordingly, as the report is silent as to when he ascertained the breach to have occurred. Nor does it appear that this report was based on values fixed on the property after the bill was filed. .There was some proof as to the value after the breach, and upon which the finding should not be based, and it does not appear that it was; but we cannot say that this evidence was incompetent as to the value as the testimony ranged for years back to the present, and it afforded some data for the register to consider in ascertaining the estimated enhancement in values between the execution of the contract and the breach. Moreover, the location of the complainants’ home, with reference to the old and the new avenue, and the causes and effects of the failure to make same upon the convenience and pecuniary value of same as now situated with the contract performed, were facts to be considered in determining the damages. There was ample evidence to support the report of the register, which is like unto the finding of a jury.

*390• What we say in discussing the equity of the hill and the proof of same, is sufficient to dispose of the demurrers, as the bill made out a clear case of equitable reformation, and was not subject to the demurrers interposed thereto.

There is no merit in the motion to dismiss the appeal. It may be true that the appeal from the decree on the demurrer to the bill could only be taken within 30 days; but the ruling can be reviewed on the appeal from the final decree. Nor are the decrees on the merits and on the report of the register so distinct and inconsistent as to bring this appeal within the influence of the case of Kelly v. Deegan, 111 Ala. 152, 20 South. 378.

The decree of the chancery conrt is affirmed.

Affirmed.

Dowdell, C. J., and Sayre and Evans, JJ., concur.