BEN CHEESEMAN REALTY CO. v. THOMPSON, 216 Ala. 9 (1927)
112 So. 151
6 Div. 872.Supreme Court of Alabama.
March 24, 1927.Page 10
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Haley, Woolverton Haley, of Birmingham, for appellant.
Parties to a contract can agree to liquidated damages for its breach, and such agreement will be enforced. Stratton v. Fike,166 Ala. 203, 51 So. 874; McCurry v. Gibson, 108 Ala. 451,18 So. 806, 54 Am. St. Rep. 177. A contract for the sale of land must be definite. Shannon v. Wisdom, 171 Ala. 409, 55 So. 102; Meyer Bros. v. Mitchell, 75 Ala. 475. A contract for the sale of the homestead, not signed by the wife, is void. Code 1923, ? 7883; Clark v. Bird, 158 Ala. 278, 48 So. 359, 132 Am. St. Rep. 25. No interest can be recovered on unliquidated damages until they are reduced to judgment. Glidden v. Street, 68 Ala. 600; Grand Bay L. Co. v. Simpson, 207 Ala. 303, 92 So. 789. No interest can be recovered unless claimed. McWhorter v. Standifer, 2 Port. (Ala.) 519; Clark v. Watson, 195 Ala. 7,71 So. 95. The measure of damages for breach of a contract to convey land is the difference between the value of the land at the time of breach and the contract price. 39 Cyc. 3114.
Percy, Benners Burr, of Birmingham, for appellee.Page 11
Some contracts cannot be specifically performed; yet the parties executing them are personally liable for their breach. Clark v. Bird, 158 Ala. 278, 48 So. 359, 132 Am. St. Rep. 25; 13 R. C. L. 639; Cofield v. McGraw, 16 Ala. App. 369,77 So. 981; 27 R. C. L. 321. Whenever one party has a legal right to recover of another a debt or damages as due at a particular time, he is entitled to interest as an incident from the maturity of the demand until the trial; and it is not necessary to specifically claim interest. A. B. R. Co. v. Brown,158 Ala. 607, 48 So. 73. Where it appears that the amounts fixed were evidently not intended as full compensation for a breach of contract, or would be grossly inadequate as such, same will be considered as a penalty and not liquidated damages. 17 C. J. 945; Watt’s Ex’rs v. Sheppard, 2 Ala. 425.
This suit is for recovery of damages for breach of written contract for sale or exchange of real property. The questions of specific performance of written contract of sale of real property and sufficiency of description employed were considered in Sadler v. Radcliff (Ala. Sup.) 111 So. 231,233,[fn1] or when the same may be rendered certain within the rules obtaining in this jurisdiction were considered in the cases of Lodge v. Wilkerson, 165 Ala. 302, 51 So. 609; Sadler v. Radcliff, 215 Ala. 499, 111 So. 231; East v. Karter, 215 Ala. 375,110 So. 610.
The contract was between parties understanding and accustomed to the terms employed in their writing, dated at Birmingham, Ala., describing the property of Thompson’s as “House at 1333 Clifton Street South.” that was subject to first and second mortgages specifically indicated or described by reference, and the property of Cheeseman described as lot 220, Hollywood, according to the survey of Hollywood Land Company, and subject to the first mortgage of $479.50 thereon. These descriptions were such as may be rendered certain as to what each party to the contract agreed to convey by warranty deed to the other.
This case was within the rule of Scott v. Moragues Lumber Co., 202 Ala. 312, 80 So. 394, where it was declared that an offer to charter to plaintiff a vessel for which the other party was negotiating for the purchase was converted into a binding contract by acceptance to be performed within a reasonable time; the promise on either hand constituting the consideration of the promise on the other. The contract here declared upon was not unilateral. Vinson v. Little Bear Saw Mills, 113 So. 385.[fn2] It is not unusual for a person to contract to convey certain properties by a certain or reasonable time, though he has no absolute or legal title to the lands at the time of making the contract to reconvey. 27 R. C. L. p. 321, ? 16; McIntyre v. Jackson Lumber Co., 165 Ala. 268, 51 So. 767, 138 Am. St. Rep. 66; Scott v. Moragues Lbr. Co., 202 Ala. 312,80 So. 394. The time is sufficiently definite and to be closed within 30 days after delivery of the abstract, provided a longer time is not required to cure defects in the title; and it is stipulated that “each party agrees to furnish abstract of title to their properties, * * * and should either prove incurably defective, the above-mentioned moneys are to be returned to their owners.” The usual stipulations as to abstracts of title and the duty to furnish the same were discussed in Baker v. Howison, 213 Ala. 41, 104 So. 239.
The evidence shows that Mr. Thompson, and wife, while in the Hollywood subdivision, were approached by an agent employed by the appellant, seeking to sell them a lot in said subdivision. This agent was told that appellee would not trade for the lot until he could dispose of his own property. Thereupon the agent communicated with appellant Cheeseman, had him to come out to the subdivision and confer with the appellee and wife, and the appellant told them that he would sell their property or take it over himself, and thereafter appellant instructed his agent to tell Mr. Nelson that lot 220, the lot in question, was sold. Nelson, prior thereto, had shown the lot to third parties in the effort to sell the same. As stated, the evidence showed that the appellant was a real estate man actively engaged in the real estate business and was one of the promoters of the Hollywood property in which subdivision was lot 220.
The evidence on behalf of the appellee was that the latter informed the appellant of the mortgages on his property and gave him certain details of the mortgages thereof, including those shown in the contract of sale, and also stated that said mortgage was reducible half-yearly. The appellant claimed that he filled in the contract according to the information given him by the appellee. The contract was prepared by the appellant, who, as we have stated, was familiar with the real estate business. Appellant testified that he knew where appellee’s property was located and that he had no trouble in locating the lot on the record. The contract of sale described the property by a house number of a certain street. The property was shown to be in Birmingham, and it was further identified as having two mortgages on it. After the contract of sale was entered into, Thompson made preparations to close the trade, sent to New York for his abstract, and his title was favorably approved by appellant’s attorney, and he and wife rented a house in Norwood: moved thereto their telephone and some of their furniture.
The evidence further shows that appellantPage 12
delayed the time for closing, and, after assuring the appellee and his wife on several occasions that the contract would be consummated, finally told the appellee in the presence of his wife and Mr. Turner that he would not carry out the contract. Turner as a witness corroborates the appellee.
After the trade and contract, the lot in Hollywood together with other lots in this subdivision, substantially increased in value ? to the extent of some 20 per cent. There was a verdict returned by the jury in favor of Thompson against the appellant for approximately the amount of this increase, together with interest thereon from date of the breach until the time of trial.
It is apparent from the authorities that oral evidence was not admitted to vary the writing evidencing the agreement of the parties. The testimony merely explained the circumstances surrounding the parties at the time they entered into the contract. It was not the intent of the parties that all the terms of the mortgages be actually included in the contract of sale and was sufficiently identified by reference to identify the same.
It is admitted by both sides that no question of fraud is presented. And in its absence where contracts contain extraneous references of fact and to other documents, the same enters therein to the extent that it is pertinent, and the parties are bound thereby. And he who omits to inform himself as to such fact or contents and extent of such other writing referred to, in so far as it is reasonable and in contemplation of parties to contract, is bound thereby. Bates v. Harte,124 Ala. 427, 26 So. 898, 82 Am. St. Rep. 186; 70 L.R.A. p. 106, note; 6 R. C. L. ? 43, p. 628.
In the instant case the damages are of easy ascertainment and not speculative. The $1 named as a valuable consideration will not, under the evidence, to oust the jurisdiction of the circuit court, be considered as liquidated damages.
In Clark v. Bird, 158 Ala. 278, 48 So. 359, 132 Am. St. Rep. 25, dealing with executory contract to convey homestead, the Chief Justice said:
“While we hold that the bond of John A. Clark is void as an obligation to convey the homestead, we do not wish to intimate that he would not be personally liable for a breach of same.”
And there is analogy in Cox v. Holcomb, 87 Ala. 589,6 So. 309, 13 Am. St. Rep. 79, and in Sadler v. Radcliff (Ala. Sup.)111 So. 231.[fn1] There specific performances were compelled of the husband and payment of amount reserved by purchases against inchoate dower interest of the wife should be secured by decretal order making it lien on land, or by a mortgage. See, also, Mathews v. Carroll Merc. Co., 195 Ala. 501, 70 So. 143; Town of Clio v. Lee, 199 Ala. 145, 74 So. 243.
The rule of Clark v. Bird, supra, was approved as to the liability of the husband in 13 R. C. L. ? 99, p. 639; Brewer v. Wall, 23 Tex. 585, 76 Am. Dec. 77. And in Irvin v. Irvin,207 Ala. 493, 93 So. 517, it is declared that the refusal of the wife to join in the conveyance of homestead is not bar to relief against the husband at proper suit by other party. Chavers v. Mayo, 202 Ala. 128, 79 So. 594; Williams v. Kilpatrick, 195 Ala. 563, 70 So. 742.
And in Cofield v. McCraw Garner, 16 Ala. App. 369,77 So. 981, it is held that the mere fact that the principal, employing broker to sell land, could not sell without the voluntary assent of the wife, does not avoid the obligation to pay the broker on his due performance of contract of sale. There was no reversible error in the admission of the evidence that the Thompsons were ready, able, and willing to comply with every request of them under the contract. It is not claimed that Mrs. Thompson’s answer, as a witness, to like effect, was prejudicial to the defendant, and her husband had already answered such ability, willingness and readiness of the Thompsons to convey as per the contract terms.
Insistence of error is in the instruction to the jury that it could award legal interest from the date of the breach of the contract to the time of the trial. This was in accord with the announcements contained in Atlantic B. Ry. Co. v. Brown,158 Ala. 607, 48 So. 73; Fuller v. Fair, 202 Ala. 430, 80 So. 814. In this case interest was allowed as an incident to the damages claimed having an ascertainable money value (Grand Bay Land Co. v. Simpson, 207 Ala. 303, 92 So. 789) for the breach of contract occurring at fixed or definite date before the institution of the suit (Stoudenmeier v. Williamson, 29 Ala. 558,569).
The judgment is affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.
[fn1] 215 Ala. 499.
[fn2] Post, p. 441.Page 13