Opinion
7 Div. 739.
June 10, 1943.
Appeal from Circuit Court, Calhoun County; Lamar Field, Judge.
Bill for specific performance of a contract for sale of real property by J. D. Watts against Robert Gover. From a decree sustaining a demurrer to the bill, complainant appeals.
Affirmed.
The bill alleges that complainant is in possession of the property described as purchaser thereof from respondent; that:
"2. Orator further shows to the court that, after negotiations for the purchase of the property with the said Robert Gover, orator received and accepted the proposition for the purchase of the property from the said Robert Gover by letter of October 1, 1942, addressed to orator's attorney in words and figures as follows:
" 'I don't care to sell the place on any terms. I want the cash for it. I am willing for you to sell the place for $500.00 plus your expense and send the $500.00 to me.
" 'Let me know what you can do about this.
" 'Very truly yours,
" 'Robert Gover.'
and in reply to said letter orator's attorney wrote to the said Robert Gover on October 5, 1942, as follows:
" 'I have your letter of the 1st inst. and note your statement that you will take $500.00 net for the place, plus the expense and attorney's fees which will be added to the purchase price of $500.00, when I secure a cash sale for you as suggested; this, of course, is subject to the $25.00 cash credit which has already been paid to you in cash, so that the balance due to you would be the sum of $475.00.
" 'I believe that we can arrange to make sale as suggested, and you may advise me whether the above statement is correct.'
"Following the foregoing correspondence the attorney for this complainant advised the said respondent Robert Gover, that the arrangement had been made to pay the balance in cash, with request that he should sign and forward to the Anniston National Bank the deed which the attorney had sent to him for execution, which said letter is as follows:
" 'I have arranged to pay the full amount of purchase money in cash, that is the sum of $475.00 — in addition to the sum of $25.00 which has been paid.
" 'You may mail to me the notes and mortgages which I sent you, made by J. D. Watts and wife. Execute the deed which I sent you, before a notary public, and send it to the Anniston National Bank, with instructions to deliver on payment of $475.00 which the Bank will remit to you. You will remit to me the sum of $10.00 as agreed.' "
It is further alleged that complainant has been in possession of the property, living in it under the contract of purchase for several months, no rent being demanded of him and no rent having been paid, on account of the fact that he had purchased the property; that as such purchaser he is in the open, notorious and exclusive possession, claiming to own same, and no adverse claims or rights have been asserted against him as such purchaser; that as such purchaser in such possession, having paid a part of the purchase money and tendering or offering to pay the balance in full, he is entitled to a conveyance, and that his contract and agreement to purchase and payment of part of purchase money and actual possession are notice to the public and all other proposed or prospective purchasers that complainant has the right to hold as purchaser and to enforcement of the making and delivery of a proper conveyance.
The prayer is that a decree be rendered directing the respondent to make and deliver a proper deed of conveyance to complainant upon payment of the purchase money as agreed or, failing, that the register execute and deliver such a deed upon the payment of the purchase money — $475.00 — for the benefit of the respondent. There is also prayer for general relief.
Rutherford Lapsley, of Anniston, for appellant.
It is not charged that appellant was guilty of laches in bringing the suit for specific performance of the completed agreement for purchase of the land; and the demurrer assumes the truth of pertinent allegations of the bill. Peck v. Ashurst, 108 Ala. 429, 19 So. 781; Jones v. Gainer, 157 Ala. 218, 47 So. 142, 131 Am.St.Rep. 52. Vendee in possession may defer suit for specific performance indefinitely without being charged with laches. Sewell v. Peavey, 187 Ala. 322, 65 So. 803. The vendee having paid a part of the purchase money, under contract that balance be paid upon delivery of deed, was not obliged to tender balance before suing for specific performance. Campbell v. Lombardo, 153 Ala. 489, 44 So. 862; Taylor v. Newton, 152 Ala. 459, 44. So. 583; Alexander v. Abernathy, 215 Ala. 41, 108 So. 849.
Merrill, Woolf Merrill, of Anniston, for appellee.
Complainant must show contract that is specific, definite and complete before he can obtain specific performance thereof. Citronelle Turp. Co. v. Buhlig, 184 Ala. 404, 63 So. 951; Code 1940, Tit. 9, § 55; Rushton v. McKee Co., 201 Ala. 49, 77 So. 343; 58 C.J. 937; Box v. Box, 243 Ala. 437, 10 So.2d 478. Contract to be specifically enforced must be shown to be fair and equitable in all its parts and its terms entirely settled and agreed upon leaving nothing for after negotiation and agreement. Derrick v. Monette, 73 Ala. 75; Cochran Lbr. Co. v. Patterson Edey Lbr. Co., 202 Ala. 366, 80 So. 448; 58 C.J. 1153. Letters will not constitute an agreement unless the acceptance is a simple acceptance without introduction of a new term. Meadow River Lbr. Co. v. Black, 26 Ala. App. 28, 153 So. 290, 292; Cochran Lbr. Co. v. Patterson Edey Lbr. Co., supra. On demurrer allegations of bill are construed against complainant. Williams v. Williams, 202 Ala. 539, 81 So. 41; Pate v. Bruner, 243 Ala. 648, 11 So.2d 356.
The appeal is to review a decree sustaining demurrers to a bill in equity.
The bill seeks the specific performance of an alleged contract whereby complainant purchased from respondent a described lot in the City of Anniston.
Considering the bill in the order of events averred, the bill seems to proceed on the theory that complainant purchased the lot, by parol agreement so far as appears, paid part of the purchase money and was put in possession as purchaser, and so remained for several months down to the filing of the bill. The terms of such purchase, the amount paid, or the balance due, are not disclosed; nor is there averment of a tender of balance due. The bill is obviously defective in this aspect, if intended as such.
By more specific averments the bill relies upon a contract evidenced by correspondence between the respondent owner, a resident of Macon County, and complainant, a resident of Anniston, through his attorney. This correspondence, and averments touching same, appear in Section 2 of the bill, which is set out in the report of the case.
Quite clearly this correspondence does not disclose a meeting of the minds of the parties. The letter of October 1st from respondent definitely demands payment of $500 to him in cash, exclusive of all expenses, etc. The answer of October 5th proposed to pay $475, claiming a part payment of $25. The second letter disclosed an offer to carry out this proposal, demanding payment of $10 by respondent, on promise to pay the $475 when respondent executed a deed and sent it to the Anniston Bank, etc. Respondent is not shown to have made any response to these proposals. It was entirely at his election to execute a deed and send it to the Bank in closing the transaction, even if complainant's final offer was otherwise an acceptance of respondent's offer.
The demurrer was properly sustained.
Affirmed.
GARDNER, C. J., and FOSTER and LAWSON, JJ., concur.