Hamaker v. Coons

HARALSON, J. 1. The pleas of the defendant, of a want or failure of consideration and fraud in procuring the subscription, and the non-ownership of the cause of action sued on, need not be considered, as the evidence without conflict does not sustain them. Adopting the view of the counsel on both sides in their arguments on file, and the course the trial took, it is evident the case was tried alone on the second count in the complaint. It was shown, without any conflict in the evidence, the causes of action in the 1st and 3d counts, are identical with that in the second. They all relate to. the same, transaction. The defendant swore that it was expressly agreed between him and Davidson, the plaintiff’s transferer, that he should not pay $1,000 in money to satisfy his subscription of that sum as a joint purchaser of said patent right, and that the twelve Florence lots were the entire and only consideration for said subscription. The evidence of T. W. Pratt, one of the subscribers, a witness for defendant, and that of J. J. Davidson, examined by plaintiff, fully corroborated defendant’s evidence as to this fact. It was objected by plaintiff to all the evidence introduced to establish this fact, that it contradicted the-paper -writing of subscription. But the several- assign [610] ments of error on. this ground are without merit. “The consideration of contracts in writing is in general open to inquiry, and it is not an infringement of the rule excluding parol evidence, to add to, vary, or contradict writings, to receive parol evidence of the actual consideration, for the purpose of determining its validity, or its failure, or that from any cause it is sufficient or "insufficient to support the contract.” — Ramsay v. Young, 69 Ala. 157 ; Davis v. Snider, 70 Ala. 315. When the legal effect of a deed is not to be varied by proof of a consideration different from that expressed, and when the object is not to establish a resulting trust in the grantor, it is a familiar principle, that the consideration clause of a deed is always open to unlimited explanation ; and that an acknowledgment of the payment of the consideration is considered as a receipt for money merely, and is open to explanation by parol as any other receipt is. — M. & M. Railway Co. v. Wilkinson, 72 Ala. 286 ; McGehee v. Remp, 37 Ala. 651; Eckles v. Carter, 26 Ala. 563 ; Sanders v. Hendrix, 5 Ala. 224. 2. The plaintiff acquired from Davidson, her transferer and grantor, no greater rights than Davidson had against defendant. All the right Davidson had against him on account of the sale to him of a sixth interest in the patent right of said invention, was defendant’s bond for titles to him for the twelve Florence lots, executed the 7th September, 1895. This bond, Davidson transferred to plaintiff, without recourse, on the 27th February, 1896. Contemporaneously therewith, and as a part of the same transaction, said Davidson executed and delivered to plaintiff a quitclaim deed to said lots. There was thereby transferred to plaintiff all the rights, equities and remedies the said Davidson had, to enforce from defendant the damages for the breach of the contract of his title bond, and no more.— Wood v. Holly Mfg. Co., 100 Ala. 327. In that bond, defendant stipulated, “I hereby agree to make and execute a valid deed of conveyance to the said John J. Davidson for said lots herein described, within thirty days from this date,”— the 7th of September, 1895. The defendant failed to comply with the condition of his bond ; and before the institution of this suit, the plaintiff, to put him in legal default, caused to be prepared and presented to him-for execution, on the 12th March, 1896, a deed in proper [611] form,-conveying to her the title to said lots, which defendant refused to execute, for the alleged reason, that he did not, at the time, have the title in himself to convey. 3. It is well settled that the value of the land at the time of the breach of the obligation to convey, with interest thereon to the time of the trial, is the measure of damages the vendee is entitled to recover. — Whitesides v. Jennings, 19 Ala. 784; Eads v. Murphy, 52 Ala. 520, 527 ; Snodgrass v. Reynolds, 79 Ala. 452. In order to show the value of these lands, the defendant pro-posed by three witnesses to prove the value of the lots described in said bond for titles. The plaintiff objected to such proof. The objection interposed to the evidence as and when offered by the first witness was general, when by the second, that it was immaterial, and when by the third, that it was illegal and irrelevant. The court overruled these objections and allowed the witnesses to state, the one, that they were worth from $5 to $10 ; the oilier, from $15 to $30, and the last one, from $30 to $40 each. Appellant’s counsel in argument disclose the real ground of objection to be, that the measure of damages for the breach of the title bond is the sum of $1,000, and not the value of the lots agreed therein to be conveyed. As we have seen, the real consideration of the bond was not $1,000 in money, but the twelve lots agreed therein to be conveyed. There was no error in overruling the objections to this evidence ; the damages recoverable for the breach of the bond being the value of the lots at the time of its breach, with interest. — Authorities supra. The court evidently took this view of the law, and gave judgment for plaintiff for $360. We are not advised by what process this sum was ascertained, but on examination of the evidence, we are unable to discover that the court erred in this estimate of damages, and approve it as being a correct finding. Affirmed.