Derrick v. Monette

STONE, J. — One of the controlling conditions on which a contract will be specifically enforced, is that it must be fair, just and equitable in all its parts ; and the party praying relief must show this affirmatively. — Moon's Adm'r v. Crowler, 72 Ala. 79. ' It is contended for appellee that the decree of the chancellor rendered in this cause should be affirmed, because the proof fails to come up to this standard. We have carefully examined the pleadings and testimony in this cause, and there is no ground shown for annulling the contract, if contract there was. Considering all the testimony, we are not prepared to say seventeen hundred and fifty dollars wras not a reasonable price, and we think there is an utter failure to prove that Robert II. Monette, the alleged vendor, was mentally incapable of making a valid contract. ■ To entitle a complainant to a specific performance, the contract must be distinctly alleged, and established by clear and definite testimony. If the proof fails to establish the contract as alleged, or if any of its terms are left in-doubt or uncertainty, a specific performance must not be decreed. — 1 Erick. Dig. 092, §§ 768, 769. So, if the terms of the contract are not entirely settled and agreed upon, and anything is left for after negotiation and agreement, the chancery court will not interfere. To perfect an imperfect agreement, would be to make, not to enforce a contract. The rule that the contract must he so far completed as to leave nothing of material import for further negotiation, is one supported alike by reason and authority. And unless both contracting parties are bound, neither is. The alleged contract in this case was made, if made at all, by correspondence. ' Derrick, the alleged purchaser, resided in Hale county, Alabama, Greensboro his post-office; and Robert E. Monette, the alleged vendor, was in Mississippi — Satartia his post-office. He wrote in an assumed name — R. IT. Johnson. The statement of facts will show the correspondence in extenso, [79] with the exception that Derrick’s first letter is not produced. That letter contained an offer by Derrick to purchase the lands, sought to be recovered in this suit. From the reply to it, and from other testimony, we learn that Clarence Derrick, complainant in this cause, proposed to purchase the lands at the price of §1750, to be-paid partly, January 1st, 1881, and the residue, January 1st, 1882, with a request that Monette, alias Johnson, fix the first payment at as small a figure as he could. Monette’s reply to this bears date August 26th, but there is shown to be a mistake in this date. This reply letter was received by Derrick August 24th. In it he proposed to sell his lands at the price offered — $1750—but stated he must have $1200 of the sum, January l'st, 1881, and balance in twelve months ; adding: “Let me hear from you early, if you accept my proposition.” To this Derrick replied on the same day — August 24th. With his reply he inclosed a blank deed to be executed by Monette, alias Johnson. That paper is also shown in the statement of facts. The deed is one of bargain and sale, without express covenants of warranty, blank as to the name of the grantor and date, Fannie Derrick the grantee, and expressing the consideration of “ seventeen hundred and fifty dollars — twelve hundred dollars, part thereof, to be paid on the 1st day of January, 1881, and five hundred and fifty dollars, the residue thereof, to be paid on the 1st day of January, 1882, to the said-----.” The letter 'inclosing this blank deed contains the following language : “Your acceptance of my offer at hand. 'I inclose a deed ; please sign it. . . You can mail the deed to T — S-— •with directions to hand it to me, when I secure the payment of the money as stated in the deed, by notes with good security, and specifying a lien, retained on the land for the deferred payment. . . I consider the trade closed, and hope you will write soon. Yon get rent this year, and pay taxes for this year.” The deed was never executed. September 10th, 1880, Monette replied : “ I will have to back out of the trade for my place. I have been offered more than you offered me by Jack, and as I am owing him some, have concluded to trade with him;” Monette died October 7th, 1880. It will be observed that this negotiation commenced in a written offer of a specified sum for tlie lands, to be paid in two installments, but leaving open for negotiation the matter of dividing the sum into the two installments. The answer agreed to accept the price offered, and specified the amounts he would require in each of the installments; being a little more than two-thirds in the first. At this stage of the correspondence, it is manifest, no contract, binding the parties, had been agreed upon. Derrick was not bound to accept the land — could not have been coerced to specifically perform the alleged contract, for none [80] liad been made. Not being bound himself, Monette was not bound. Up to this stage the correspondence was by Clarence Derrick, and in his name. He it was who proposed to purchase. The name of Mrs.. Fannie Derrick as a purchaser had not been mentioned. The question of contract ml non must, then, depend on Derrick’s reply to this letter of Monette, declaring the division of the installments. If he had simply replied to Monette, accepting his terms without more, we will not say this would not have constituted a binding contract. Contracts of - bargain and sale of. lands on credit are, in this State, usually conducted in one of two forms. Either a bond to make title is executed by the vendor, thus retaining the title as security for the purchase-money; or a conveyance is made, the vendor contemporaneously receiving back a mortgage of the premises, to secure the payment of the purchase-money. Possibly, these implications, coming in aid of the very general language employed in the negotiation, would, in the case supposed, have' justified the specific enforcement of the contract. But we need not decide this. At this stage of the negotiation, we are met with additional propositions. The first is, that title shall be made to Fannie Derrick,, a mamed-wcunan, wife of Clarence DerricS, who had made the overture of purchase. This was the introduction of a new name as purchaser, not theretofore proposed. If it be said, this change could not have injuriously affected Monette, the answer is, that that is not the question. Contracts can only be specifically enforced as they are made. On a bill alleging and proving one contract, the chancery court will not decree the execution of another at the request of the complainant, merely because it is no more burdensome to the defendant than the contract he did make. To test this, let us suppose the bill had been filed by Mrs. Derrick, praying that title be decreed to her. Every one will concede she could obtain no relief, on the allegations and proof found in this record. The reason is, that not only had no contract been made with her, or in her name, but there had been no offer to purchase in her name. If -necessary, it may be supposed Monette was unwilling to convey title to a married woman, the purchase-money remaining unpaid. But the law does not require that Monette should give any reason for refusing to execute a contract he had neither made, nor offered to make. It is urged, however, for appellant, that Derrick accepted Monette’s offer absolutely, and merely proposed, not as a condition, but for convenience sake, to have the title made to his wife. We do not so understand the letter: When'that letter was written, only three particulars of the contract had been agreed upon ; the price, the division of the installments, and- when [81] they should severally mature. Iiow or when, the conveyance should be made, and how the purchase-money should be secured, had not been mentioned. Suppose Monette, when he received . .the letter and the blank deed, had been unwilling to convey the title to a married woman, or had been unwilling to part with the title, until the purchase-money was secured by a mortgage he could have had recorded, or until the purchase-money was paid; and suppose he so informed Derrick. Thén suppose Derrick declined to take further steps in the purchase. Could Monette, on a bill against Derrick, compel him to specifically execute the contract in his own name as purchaser, and securing the purchase-money in one of the modes common in our. land sales? Would not a complete answer to such complaint be, that Derrick’s acceptance was given on the condition that title should be made to Fannie Derrick, and the purchase-money secured in the manner proposed in the letter of August 24tli ?. Negotiations never were finished ; the contract never was coiiipleted. “ Letters will not constitute an agreement which will be specifically performed, unless the answer is a simple acceptance, without the introduction of a new term. . . If the contract be not actually concluded and certain in all its parts, as if the matter still rests to any extent in treaty, or be uncertain or undefined in any particular, a court of equity will not interfere by way of specific performance.” — 1 Sto. Eq. Jur. § 736 e ; Lyman v. Robinson, 14 Allen, 242; Canton Co. of Baltimore v. Northern Gen. Rw'y Co., 21 Md. 383. It is no answer to these views, that Monette, in his final note, said he must back out from the trade, giving as a reason that •another had offered him a better price. He had made no‘contract in writing, by which he was bound, and hence, he had the right to retire from tile negotiation for an insufficient reason, or for no reason. If this writing proved he thought he had made a binding contract, -when he had not, that would not help the appellant. Neither in that note, nor in any other writing brought to our knowledge, did he express assent to the new terms found in Derrick’s letter of August 24th. The decree of the chancellor is affirmed.