57 So. 462 | Ala. | 1912
But two questions are insisted upon by appellant for a reversal of the judgment of the lower court. These questions are thus stated in brief of his counsel:
First: “An action will not lie at law to recover the purchase price of real property, unless the vendor has executed and delivered a deed to the vendee, and, until there has been a conveyance of the title to the vendee,, the vendor’s measure of damages is the difference between the contract price and the value of the land at the time of the breach.”
Second. “Plaintiff’s failure to allege performance on his part, or an offer to perform, or a readiness and willingness to perform, was fatal to counts 3 to 6, inclusive, of the complaint, not only as counts for the recovery of the purchase money, but also for damages, if they could be construed as counts for damages, and not for purchase money.”
In order to clearly understand the propositions thus asserted by appellant, it will be necessary to state the case as made by the record, and to which the propositions are sought to be applied.
The appeal is on the record alone, and only the rulings on demurrers to counts 3, 4, 5, and 6 are sought to' be reviewed.
It appears from the pleadings that prior to the time of this suit appellant and appellee were partners, and
Appellee sued appellant on account of this contract. The complaint contained six counts. The first two were common counts on an account stated. The third, fourth, fifth, and sixth declared specially upon the contract. The third count, however, merely declared generally, as for the purchase price of a half interest in the farm. The fourth attempted to set out the contract in substance only, while the fifth and sixth set out the contract in hsec verba.
It is alleged in the fifth and six counts that the phrase, “January 15, 1910,” should read, “January 15,
If any such defenses are availing as are insisted upon by appellant, they should be brought forward by special pleas. It is not at all necessary that a complaint for the purchase price of land should affirmatively show that.a deed had been executed or tendered, as is necessary when the action is to recover damages for the failure to convey or to perform the contract of sale, or when the contract shows that there are conditions precedent to the payment of the purchase price. In other words, this is not an action to. recover unliquidated damages for a failure to perform the conditions of a special contract; but it is an action to recover an amount certain, agreed to be paid. Appellant has confused actions of the one kind with those of the other.
The principles of law discussed and applied in the case of Brady v. Green, 159 Ala. 484, 48 South. 807, and in the cases therein cited, are therefore not applicable to this case, which is one merely to recover the purchase
The rule is well stated by Mr. Warvelle (2 Vendors, § 900, p. 106;) as follows: “Where a contract of sale contains mutual dependent covenants with respect to the payment of the purchase money and the conveyance of the estate, neither party can maintain any action upon it against the other Avithout averring and proving performance or a readiness and willingness to perform, and, according to* some authorities, notice to the other party of readiness and willingness. But where the contract stipulates that the purchase money is to be paid on or before a specified day, and that a conveyance is to be executed at a subsequent time, the covenants are independent, and an action may be maintained for the purchase money after the day specified for its payment without making or offering to make a deed. Where the contract contains covenants by the purchaser to pay in installments, the vendor may sue for each installment as it becomes due.”
The authority cited in support of the text is a decision of our own court in the case of Broughton v. Mitchell, 64 Ala. 210, as follOAVs: “An application of the rule to this contract renders it certain that the payment of the purchase money by Broughton was intended to precede, and was not dependent upon, the making of titles to him by McCall. A day certain — the 1st of January, 1861 — is fixed for the payment of the purchase money. No time is fixed for the making of titles. McCall is to make them, Avhen, under the contract with his vendors,
A vendee has no right to refuse to pay the purchase price agreed on in a case like that made by the pleadings here, and remit the vendor solely to an action to recover damages as for “the difference between the contract price and the value of the land at the time of the breach.” If he has the option so to do (which we do not decide), the law does not compel him to exercise it in a case like this. The contract price may be less than the value of the land, and hence the vendor could recover no damages, but he may prefer to have the money instead of the land, and he has a right to insist upon its payment as agreed, though it be less than the value of the land sold.
It therefore follows that we find no reversible errors in this record, and the judgment appealed from must be affirmed.
Affirmed.