Ezzell v. S. G. Holland Stave Co.

99 So. 78, 210 Ala. 694, 1924 Ala. LEXIS 48

• Court: Supreme Court of Alabama
• Decided: January 24, 1924
• Docket: 8 Div. 514.
• Status: Published

Opinion

GARDNER, J.

The S. G. Holland Stave Company, a corporation, filed the bill in this cause against John T. Ezzell, seeking the specific performance of an alleged contract on the part of said Ezzell to purchase from the complainant certain 1,600 acres of standing timber situated upon lands in Colbert county, Ala.

The cause being submitted for final decree upon pleadings and proof, the testimony being taken by deposition, the trial court reached the conclusion that the complainant was entitled to the relief sought, decreed specific performance of the contract, and gave judgment for the purchase money. To review this decree the appeal is prosecuted.

The contract here sought to be enforced is evidenced by letters only, and it is strenuously insisted by counsel for appellant that the statute of frauds is a complete answer to this cause, in that the writings nowhere describe the property, and, further-, that the letters, themselves, properly construed, only disclose a “treaty pending and not a contract concluded.” The transaction here sought to be enforced originated from a per-sonal conversation had between 'Ezzell and representatives of .the stave company. In this conversation the price was fixed at $1 per acre. Either at the time of the interview or a few days subsequent a memorandum was made as to the description of the timber copied from the deeds then exhibited, which memorandum has been lost. It contained no signature or any other writing save a notation of the description. The first writing concerning the purchase is found in the letter of September 5, 1919, written by Ezzell’. This letter, together with the other correspondence which appears material to this controversy are set out in the report of the case. The timber was referred to in the letter of September 5th as “the 1,600 acres of timber that we were speaking about last Monday morning in your office,” and on September 8th thereafter the stave company, in-acknowledging receipt of this letter, referred to the timber as “our timber that we were talking about.” The letter written by Ezzell on September 9th, in response to that of the stave company of September 8, likewise contains no description of the timber, merely referring to it as “the 1,600 acres of timber land.” There is evidence- to the effect that complainant owned other timber lands in Golbert county at that time.

Upon subsequently inspecting the timber in company with an agent of the stave company, Ezzell declined to purchase, and so notified the agent, and in answer to other letters so wrote the stave company on November 2, 1919. On November 17, 1919, the stave company forwarded to a bank at the home of the respondent a duly executed deed with draft attached for $1,600, the deed to be delivered upon payment of the draft. Respondent declined to receive the deed and pay the draft; hence this litigation.

It is of course not to be controverted that the letters themselves contain no sufficient description of the property, the subject-matter of the entire transaction, but the reference is only to the timber the parties had been “talking about.” There is, therefore, no foundation for the application of the maxim, “Id certum est quod certum reddi potest,” as was recognized and enforced in the authorities cited by counsel for appellee, among them Meyer Bros. v. Mitchell, 77 Ala. 312; Meyer Bros. v. Mitchell, 75 Ala. 475; Angel v. Simpson, 85 Ala. 53, 3 South. 758; Howison v. Bartlett, 141 Ala. 593, 37 South. 590; Nolan v. Henry, 190 Ala. 540, 67 South. 500, Ann. Cas. 1917B, 792; Minge v. Green, 176 Ala. 343, 58 South. 381; Daniel v. Wade, 203 Ala. 355, 83 South. 99.

Nor can resort be had to the memorandum description above noted, so as to supply this fatal deficiency. No reference thereto is found in any of the letters, nor is there anything in the correspondence indicating in the least that this memoradum has any relation to the contract, as is insisted was established thereby.

In Alba v. Strong, 94 Ala. 163, 10 South. 242, this court said:

“The. following propositions must be regarded as settled by the former decisions of this Court beyond'controversy: First. That to authorize the specific enforcement of an agreement to sell land all the terms of the agreement must have been agreed on, leaving nothing for negotiation. Second. That all the terms of the agreement, viz., the names of the parties, the subject-matter of the contract, the consideration and the promise, must be in writing, signed by the party sought to be charged, or by his agent thereunto authorized in writing. — Oode, 1886, § 1732. Third. That it is not essential that the paper evidence of the agreement be in any particular form, provided it contain the substance, as stated above. Fourth. That the written evidence of the terms of the agreement need not all be expressed in one paper. If expressed in two or more papers it will be sufficient, if collectively they contain enough, and refer to each other, and show the connection with sufficient clearness, without the aid of oral testimony. If, however, oral testimony is required to connect the papers, or to supply any essential terms of the contract, then there is a failure to make a case for specific performance.”

See, also, Carter v. Shorter, 57 Ala. 253; Carroll v. Powell, 48 Ala. 298; Adams v. McMillan, 7 Port. 73; Nelson v. Shelby, 96 Ala. 515, 11 South. 695, 38 Am. St. Rep. 116; Shannon v. Wisdom, 171 Ala. 409, 55 South. 102; Jenkins v. Harrison, 66 Ala. 345; Patt v. Gerst, 149 Ala. 287, 42 South. 1001; Rains v. Patton, 191 Ala. 349, 67 South. 600.

The case of White v. Breen, 106 Ala. 159, 19 South. 59, 32 L. R. A. 127, cited by appellee’s counsel, is in harmony with the foregoing authorities. The holding there was merely to the effect that where the papers show unmistakably that they relate to the same matter and constitute several parts of one continuous transaction, and that each was written with reference to the other, then there is such direct reference in the one to-the other as to come within the rule established by our cases.

Any connection between this memorandum of the description and the correspond enee in relation to this transaction is wholly dependent upon oral proof, and it is well established that parol proof is not admissible to render valid undertakings which are void by reason of the statute of frauds. As said in Shannon v. Wisdom, supra:

“If it is necessary to resort to oral evidence of the intention of the parties as to the lands bargained for, the writing is not sufficient, and the statute is not complied with.”

It therefore appears that respondent Ezzell had entered into no binding and enforceable contract for the purchase of this timber. The execution and tender of the deed by the stave company, as herein noted, could add no strength by way of making valid a contract as against Ezzell, which was void by reason of the statute of frauds, and which he had previously repudiated. Rains v. Patton, supra.

For specific performance of a contract the obligation must be mutual; must be valid and binding upon both parties.

“Executory contracts wanting in mutuality are not enforceable.” Shannon v. Wisdom, supra.

- There was therefore error in decreeing the specific performance of this contract against respondent.

We are rather inclined to the view that the other objections to the effect that the correspondence shows a treaty pending rather than a concluded contract are well taken under the authority of Carter v. Shorter, supra. But, as the conclusion we have announced in regard to the invalidity of the contract for want of description of the sub-ject-matter is conclusive against the relief sought in the bill, a consideration of this further objection is unnecessary, and therefore pretermitted.

We are of the opinion the court below erred in the decree rendered, and that the bill should have been dismissed. The decree of the lower court will be reversed, and one here rendered dismissing the bill.

Reversed and rendered.

ANDERSON, C. J., and SAYRE and MIDLER, JJ., concur.