111 So. 231 | Ala. | 1927
The bill is for specific performance of a sale of land and sought indemnity against the wife's inchoate dower interest in the event she refused to join in the deed with her husband, in the event the latter was required to convey.
It is admitted that Espalla, Jr., Co. made the sale of the property on the conditions indicated in the written authority given by Sadler, and that the former evidenced that sale in writing as indicated.
It is pertinent to inquire whether Espalla, Jr., Co. had the authority to sell and evidence the same in writing, as was done so to bind Sadler under the statute of frauds (Code, § 8034), and whether the writing sufficiently described the land made the subject of the contract. After the execution of the instrument by Espalla, Jr., Co., defendant wrote that firm:
"I wish to recall my offer for the sale of my property on Mon Luis Island."
This court takes judicial knowledge of Mobile Bay, its shores, and islands. Kay Son v. Ala. Cotton Grain Co.,
In Campbell v. Lombardo,
"Upon delivery of the deed by said Campbell the said Mrs. Lombardo is to pay the balance *502 of the $1,700, namely, $1,690. [Signed] Hattie Lombardo. Jones Risen, Agents for Daniel Campbell."
The court said that, when the case was considered on first appeal, it was held:
"That the contract of sale entered into between 'Jones Rison,' as agents, and the appellee, Lombardo, was wholly complete and such as could be specifically enforced in equity." Id. (Ala. Sup.) 39 So. 573, not [officially] reported.
In view of the argument of appellant's counsel, we have examined the original record in the Campbell-Lombardo Case, and note that the third ground of demurrer to the amended bill was:
"Said bill seeks to enforce a contract for the sale of real estate, which shows on its face that it is void under the statute of frauds."
And in Minge v. Green,
It was declared in White v. Breen,
"I will accept the trade if one hundred dollars are paid down as a security — hope you can make a trade."
The agent closed by receipt:
"Sheffield, Ala., Dec. 15, 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 vendor attempted repudiation for failure of the wife's signature. In that case the court observed that —
"The agent, keeping within the scope of his authority," had the right to "make the contract and execute the necessary written evidence binding his principal to its performance." White v. Breen,
The case of Ledbetter v. Walker,
And in Jenkins v. Harrison,
"The purpose and object of the statute being no more than the requisition of written evidence of the substance of the contract, signed by the party to be charged, so that he may not be subjected to the mischief which could follow from mere oral evidence; the purpose and object, and the words of the statute, are all satisfied, 'whenever there exists, under the hand of the party sought to be charged, a written statement, containing, either expressly, or by necessary inference, all the terms of the agreement — that is to say, the names of the parties, the subject-matter of the contract, the consideration, and the promise, and leaving nothing open to future treaty. This, therefore, is sufficient to satisfy the statute; and provided this be found, no formality is required; nor does it signify at all what is the nature or character of the document containing such written statement — whether it be a letter written by the party to be charged to the person with whom he contracted, or to any other person, or a deed, or other legal instrument, or an answer to a bill, or an affidavit in chancery, in bankruptcy, or in lunacy.' Fry on Specific Perf. § 344." Ezzell v. S. G. Holland Stave Co.,
It is insisted that Espalla, Jr., Co. was a merebroker rather than an agent with authority to sell; that is, was a real estate agent merely to find a purchaser and report to the owner. The subject is discussed in 1 Mechem on Agency (2d Ed.) § 798, saying, among other things, that if it is entirely clear from the correspondence, or negotiations between the parties is such as to create the authority within the statute of frauds, to make a binding contract to sell, such effect will be given, notwithstanding the phraseology used, or the authorization be not in formal terms. The test is, Does the writing or writings constituting the agency or relation of the parties sufficiently indicate that the agent is authorized to "close a binding contract of sale?" Mr. Mechem says:
"This may be merely a question of the construction of the words used, or it may be an inference of fact as to intention to be decided like other similar questions." 1 Mechem on Agency (2d Ed.) p. 572, § 798.
If the meaning of the written contract be of doubtful import on account of ambiguous language employed by the seller, the ambiguity will be construed in the light of the circumstances and objects to be accomplished, and the doubt resolved against the seller, who framed, gave, and executed the power on which the purchaser acted to his prejudice; that is to say, such is the result unless the contract would be annulled or other rules of construction will be ignored by such construction placed upon the contract under consideration. Denson v. Caddell, *503
It was the duty of Sadler to have used such language as that one relying upon his written authority be not misled thereby to his prejudice. Hopwood v. Corbin,
Aside from the foregoing, the buyer and agents reasonably construed the contract within its terms and language as authorizing a sale by the agents, and the seller or vendor, being informed of the sale, promising to furnish abstract, was an acquiescence in the construction of the contract by the buyer and agents. Such practical construction during the consummation of the sale should and usually will be adopted by the courts, within the rules of construction of contracts and statutes obtaining. Jefferson Plumbers Mill Sup. Co. v. Peebles,
Within the application of these rules, and the evidence before us, we entertain no doubt of the agent's authority to sell as he did, and evidenced by the writings to bind Sadler.
The description was sufficiently definite and certain (Angel v. Simpson,
In Nelson v. Shelby, etc., Co.,
In Howison v. Bartlett,
"The reason for this principle is obvious, and was stated by Judge Story in this language: 'For a court of equity ought not to act upon conjecture; and one of the most important objects of the statute of frauds was to prevent the introduction of loose and indeterminable proofs of what ought to be established by solemn, written contracts.' 1 Story's Eq. § 764. While the foregoing is true, yet it is equally true that it is not indispensable that the land should be so accurately described as to leave no doubt as to what is meant; evidence dehors the contract being admissible to explain ambiguous terms, under the maxim, 'That is certain which may be made certain.' This principle was recognized in the opinion of the court on the former appeal in this case in this language: 'Neither the statute of frauds nor any principle governing specific performance requires such definite description of the land as to preclude the necessity for a resort to extrinsic evidence, such as will render the given description certain.' Waterman on Specific Performance, § 144; Bass v. Gilliland's Heirs,
In Matthews v. Bartee,
" 'The Fernland mill site, and pine lands near thereto, comprising some eight thousand acres, more or less, and the railroad and rails connected therewith, with the tram cars thereon;' and these words were added in the deed, in further description of the three tracts of land; 'the last-described tracts of land being more particularly described in the deed made July 18, 1881, by Garland Dees and wife to A. C. Danner Co.' "
And Mr. Chief Justice Stone observed of its defect:
"In the case in hand, the writing neither expresses the quantity of the land, nor any description by which it can be determined what land was intended to be bought or sold. This, according to the averments of the bill, rests entirely in parol. The chancellor did not err in sustaining the demurrer to the bill."
The case of Shannon v. Wisdom,
In Homan v. Stewart,
In De Briere v. Yeend Bros. Realty Co.,
In Minto v. Moore,
The case of Glass v. Smith,
The case of Minge v. Green,
The rules as to interest on the amount reserved in lieu of the inchoate right of dower and merely to indemnify are:
"(1) The amount of the reservation should be one-half or one-third of the purchase price, as the wife may presently appear to be entitled under section 3813 of the Code, prescribing the quantum of the dower estate.
"(2) If the dowress expectant die before her husband, the amount reserved, with legal interest to that date, should be forthwith paid to the vendor.
"(3) If she survive her husband, the amount reserved falls due upon her death, and is then payable to the vendor's heirs at law or assigns, with legal interest accruing during the vendor's lifetime only.
"(4) The ultimate payment of the amount reserved should be secured by a decretal order making it a lien on the land, or else by a mortgage on the land conditioned and payable as above prescribed, as the chancellor may in his discretion determine." L.R.A. 1917F, 599, note.
The decree was in accordance with the foregoing rule.
The decree is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.