406 So. 2d 871 | Ala. | 1981
This appeal is from a judgment denying specific performance and awarding damages for breach of a contract to convey realty
Neil Thomason and his wife, Mary, owned a house and lot in McCalla, Alabama. In 1979 they listed their house for sale with Johnson-Rast Hays. Madge Campbell, an employee of Johnson-Rast Hays, was designated as the listing agent for the Thomason home. During the summer of 1979, another Johnson-Rast Hays agent, Mrs. Jerry Jones, secured from James Wilson a contract to purchase the Thomason house for $55,000, which she presented to the seller's agent, Madge Campbell. The Thomasons counteroffered for $56,000. Wilson accepted *872 this offer and set a closing date of August 30, 1979. After Wilson paid his earnest money, but before the closing date, the Thomasons' attorney notified Mrs. Jones that the Thomasons would not close the sale. Wilson filed suit against the Thomasons on October 16, 1979, seeking specific performance of the contract and, in the alternative, damages for breach of contract. In addition to the complaint, Wilson filed a lis pendens notice notifying all prospective purchasers of the pending suit. Thomason later sold the home to the Sawyers in November of 1979
During trial, Wilson testified that although his birth name was Larry Wright, he also used the name James Wilson, and that he had previously purchased property under both names. Wilson conceded that he was a member of the Devil's Disciples motorcycle club, and that he had been involved in several altercations, but denied that he concealed his identity by representing himself to be James Wilson or that he intended to use the house as a clubhouse for the Devil's Disciples. Wilson also denies any fraudulent intent by the use of the name James Wilson
Mrs. Thomason testified that she would not have signed the contract of sale if she had known Wilson's true identity and his affiliation with the Devil's Disciples
A property appraiser, testified that the appraised value of the Thomason home was $70,000.00. William Sawyer, who owned the house at the time of trial, testified that its market value was $55,000.00. The trial court, sitting without a jury, denied Wilson's prayer for specific performance, found that the Thomasons had breached the contract, and awarded $2,532.00 in damages. Wilson appeals
There are two reasons why the court could have denied specific performance. First, the Sawyers, who had previously purchased the house and lot, were not made parties to the suit Rule 19, ARCP. This Court held in Johnson v. White-Spunner,
. . . In an action where the final decree affects title, ownership, or interest in real property each possessor of title, ownership or interest must be made a party to the action. Davis v. Burnette,341 So.2d 118 (Ala. 1976); Dews v. Peterson,283 Ala. 650 ,219 So.2d 903 (1969); Snodgrass v. Snodgrass,212 Ala. 74 ,101 So. 837 (1924). . . . [Emphasis added.]
Second, the plaintiff, whose true name is Larry Donald Wright, signed the contract of sale as James Wilson. The plaintiff owned other property, both as Larry Wright and as James Wilson. While it has been said that a person may adopt what name he pleases if no harm has been done, Milbra vSloss-S.S. I. Co.,
"A contract may be perfectly binding at law; it may be of a class which brings it within the equitable jurisdiction, because the legal remedy is inadequate; but, if the plaintiff's conduct in obtaining it, or in acting under it, has been unconscientious, inequitable, or characterized by bad faith, a court of equity will refuse him the remedy of specific performance." 1 Pom.Eq.Jur. § 400
And thus in conclusion of the whole subject:
*873"It is not alone fraud or illegality which will prevent a suitor from entering a court of equity; any really unconscientious conduct, connected with the controversy to which he is a party, will repel him from the forum whose very foundation is good conscience." Section 404
The last contention of error deals with the award of damages to the plaintiff for breach of contract in the amount of $2,532.00. The plaintiff argues there is no evidence to support this amount. An expert testified that the fair market value of the house and lot was $70,000.00. Sawyer, who owned the house at the time of trial, testified that the fair market value of the house and lot was $55,000.00. The contract sales price was approximately $56,000.00. The evidence would therefore support a finding of damages to range from zero to $14,000.00. The court's finding was within the range and will not be disturbed Counsel for both the appellant and the appellee state that they cannot by computation arrive at the same figure as the trial court. We will concede that we cannot either. But the burden is on the appellant to show error, and we cannot conclude that he has done so. The appellant merely argues that the court was bound by the expert testimony of $70,000.00. As we have previously stated, there was other evidence before the court on the value of the property
AFFIRMED
TORBERT, C.J., and FAULKNER, EMBRY and ADAMS, JJ., concur
