Cale v. Clark

*198 Maxwell, Judge: This is a suit for specific performance of a contract for the sale and purchase of an identified tract of land in Preston County. On demurrer, the trial court held the second amended and supplemental bill to be insufficient, and dismissed the cause. The plaintiffs, W. E. and J. S. Cale, own the land involved and seek to compel the defendant, Stanley J. Clark, to accept from them and their wives a deed for the land and to pay the agreed consideration therefor in pursuance of a written contract of October 7, 1937. The contract was signed by the plaintiffs and Clark. The caption of the contract also carries the name of Verna M. Clark as a party of the second part with Stanley J. Clark; and there is a blank place for her signature, with seal inscribed, but she did not sign. The contract recites that the consideration for the sale is $2,000.00, whereof $500.00 was to be paid in cash and the residue on delivery of the deed. In the original bill the plaintiffs proceeded against both Stanley and Verna on the theory that they were jointly obligated by the contract, the bill carrying an allegation that Stanley was the authorized agent of Verna and that his signature on the contract was in her behalf as well as for himself; further, it was alleged that at the time of the execution of the contract Stanley gave his check for $500.00, payable to the Bruceton Bank for the benefit and account of the plaintiffs; that Stanley and Verna were immediately placed in possession of the land; that thereafter Stanley instructed the bank not to pay the check, and, that subsequently the plaintiffs tendered a deed to the Clarks which they refused to accept. The prayer of the bill is for compulsion of both Stanley and Verna to comply with the contract. The chancellor sustained a demurrer to this bill. After the failure of the original bill because Verna M. Clark had not signed the contract, the plaintiffs filed their first amended and supplemental bill wherein Stanley J. Clark was the sole defendant. On the basis of the contract above set forth relief was sought in this bill against *199 Stanley alone, averment being made that after the refusal of the deed to the Clarks jointly, the plaintiffs tendered a proper deed to Stanley and that he declined to accept it. The second amended bill is grounded on the same theory as the first amended bill, but differs from it in that the-re are brought in other parties who may have liens on the land, there being allegations that arrangements have been made for the discharge of these debts and release of the liens, in full protection of Stanley J. Clark as purchaser of the land. Among the reasons set forth for the chancellor’s action in sustaining the demurrer to the second amended bill and dismissing the same, were, first, that the latter bill presents a different ’cause of action from the original bill because there was averment therein that Stanley and Verna had contracted to buy the land, and, latterly, the plaintiffs aver that Stanley alone was obligated by the contract. A second reason for the court’s action in sustaining the demurrer to the last bill was that the plaintiffs did not tender a deed to Stanley “as soon as possible” as required by the contract of October 7, 1937. The learned chancellor expressed the opinion that the quoted phrase means “within a reasonable time”, and that inasmuch as a deed was not tendered by the plaintiffs to Stanley until the month of August, 1938, such tender came too late. It is fundamental that parties to a suit will not be permitted to assume therein successive inconsistent positions. Greenbrier Laundry Co. v. Casualty Co., 116 W. Va. 88, 178 S. E. 631. But we are of opinion that the facts pleaded by the plaintiffs do not disclose basic inconsistencies between the original bill and the-two succeeding bills. There is not presented a change of base by the plaintiffs. They have grounded their position on the contract throughout, and it, of course, remains unchanged, whatever may be its legal effect. In the first bill the plaintiffs averred that Stanley Clark’s signature to the contract stood for both him and Verna, but the chancellor held this position not well taken, and sustained Verna’s demurrer to the bill. Subsequently, the plaintiffs pro *200 ceeded against Stanley alone on the theory that he, at least, is bound by the contract. The wholesome rule against departures in pleadings or proof should not be carried to the extent of precluding parties from obtaining judicial determination of the meaning and effect of a written instrument merely because in their initial efforts respecting the same they averred that it has a legal effect which could not be judicially approved. Also, it is urged in defense that the contract on its face purports to obligate two purchasers of the land; and that the intended purchaser who signed the contract is not bound thereby in the absence of the signature of the other intended purchaser — that it is an incomplete contract within the meaning of the principle applied in Ely v. Phillips, 89 W. Va. 580, 109 S. E. 808. But that case recognizes, on authority cited, that where a written instrument, designed to constitute a contract, is not signed by all the persons whose signatures were contemplated, the parties who signed will not be relieved as a matter of law because some did not sign; and that whether those who signed will be bound will depend on the language of the instrument itself or the attending facts and circumstances. Here we have the averment in the first amended and supplemental bill, made a part by reference of the second amended and supplemental bill, that the “defendant Stanley J. Clark was placed in possession of the land and premises in question on or about the 7th day of October, 1937, or a few days thereafter; that he took full possession of the same, personally and by tenant, and made full use of all of the property and the improvements thereon as his own.” If, in fact, Stanley J. Clark treated the contract as his own and under the terms thereof entered into possession of the property, the fact that Verna, though named in the caption of the contract, did not sign, becomes unimportant. Respecting the time when the deed was tendered by the plaintiffs to Stanley J. Clark, we are of opinion that whether the tender was made within the timé prescribed by the .contract, circumstances considered, is a matter *201 which may be more satisfactorily determined on proof than on pleadings merely. Other points of demurrer, urged by defendant Clark and considered by the chancellor in his written opinion, we are persuaded, occupy positions of secondary importance, and for the sake of abridgment of this opinion, will not be here discussed. For the reasons set forth, we are of opinion that plaintiffs are entitled to have their cause heard on the allegations of the second amended and supplemental bill, therefore we reverse the decree of the trial court and remand the cause for further proceedings. Reversed and remanded.