Coleman v. Easterling

Lumpkin, Justice. The reporter’s .statement sets forth, in substance, the allegations of the plaintiff’s petition, to the dismissal of which he excepted. His contract with the defendant not being in writing, it was insisted that it was within the statute of frauds, and therefore not binding. The allegations of the petition, considered m connection with exhibit “D” thereto, are perhaps sufficient to show there had been such a part performance by Coleman as would take the case out of the statute. The title to the lands was in Sheppard and McDonald, by virtue of deeds from the sheriff, who had sold the lands as the property of Coleman. They had agreed to hold the title as security for the purchase money, as well as for other indebtedness of Coleman to them, and to allow Coleman, who continued in possession, ah opportunity to redeem the property,. He induced Easterling to settle his in 36 debtedness to Sheppard and McDonald, and to take from them a title to the lands as security, both for the money paid to them, and for any other sums which, in the business between Coleman and Easterling, might become due the latter; and upon payment of the amount due to him, Easterling was to convey the property to Coleman, who, in the meantime, was to remain in possession, and who, in fact, did remain in possession. It was further agreed, that Coleman was to have two years in which to redeem the lands, and that he was to cut, haul, and deliver timber growing thereon at certain sawmills owned by Easterling, who was to convert the same into lumber, sell it, and after deducting expenses, credit upon the indebtedness of Coleman to him the net proceeds of the sales. Coleman, in pursuance of this agreement, did cut and deliver large quantities of timber; and though the business was not profitable, there was a small balance due to Coleman,arising therefrom. The prosecution of this business was either abandoned or suspended, and Coleman thereupon agreed with Easter-ling to rent out the lands for turpentine purposes, and to apply the rents to the payment of his indebtedness to Easterling. Taking all these averments as true, it may be that if the petition had been in other respects sufficient, it would have been proper to grant the relief prayed for. We think, however, that the petition is fatally defective, because it fails either to distinctly and definitely allege what the balance due by Coleman to Easterling was, or to state any good reason why the plaintiff could not have ascertained and averred what this balance was. The petition is also defective because it does not aver that Coleman had tendered to Easterling any specified sum as the amount or balance due him, which would certainly be necessary in order to authorize a decree for specific performance. The following extracts from the 37 plaintiff’s pleadings contain about all that is material or pertinent concerning the balance due Easterling, or the alleged tender. Even a cursory reading will- suffice to show they are altogether too- vague and indefinite as to these essential matters. The petition alleges that the petitioner “has never been able to get a full accounting with the said Easterling, but has offered, through D. Y. Coleman, on or about the 16th of October, 1889, to pay him, the said Easterling, upon an accounting between them, all the money, principal and interest, due him by this petitioner, which he then and there declined to do, and would not receive the money from this petitioner in full payment of all the debts due him, the said offer being coupled with the demand on the part of this petitioner to have the title to the foregoing lands conveyed to him by the said Easterling”; and also, that petitioner “has done all he could in order to comply with his contract with the said Easterling, in good faith; that he has been and is ready and willing to come to an accounting with him, and pay to him all of the money due to him, as aforesaid, but the said Easterling refuses to receive it.” The amendment alleges, that the lands were leased for turpentine purposes, as agreed, and that “ the very money tendered to Easterling was in pursuance of this' agreement to lease, and was money derived from the lease. This money so tendered was to pay principal and interest of the indebtedness due by your petitioner to defendant, and the tender is continued.” Among other things, the petition prays that Easterling may be decreed “to come to an accounting with your petitioner, so that it can be ascertained exactly the sum of money that is due by your petitioner to him, the said Easter-ling” ; and that petitioner “ may receive a good and sufficient deed from the said defendant of the said lands hereinbefore set out, upon payment by this petitioner to said defendant of the sum of money so found to -be due by him.” 38 We are therefore fully satisfied that the trial court committed no error in holding the petition insufficient in law. Indeed, under the petition as it stands, it does not appear that the plaintiff’s action had fully ripened. If he could not ascertain the exact amount he owed Easterling, and which it would be incumbent upon him to pay, or offer to pay, before he would be entitled to demand a conveyance of the lands, he certainly could have ascertained approximately what that amount was, and ought to have tendered a sum at least sufficient to satisfy the indebtedness. This was necessary to complete his light to a conveyance, and consequently, ought to have been done before the action was brought. If a proper tender had been made, and the petition had alleged this fact, the question presented would have been an entirely different one, and it is quite probable the trial judge would then have given the case other and appropriate direction. Judgment affirmed.