Moore v. Whitmire

SOMERVILLE, J. Count 2 of the complaint, which is in case for deceit, was not, as amended, subject to any of the specified grounds of demurrer. To support this phase of the complaint it was not necessary that the transaction out of which the deceit arose should have been evidenced by a Avriting. And, even if the substantive law were otherwise, it is never necessary for the complaint to allege or show a Avriting in conformity with the requirements of the statute of frauds. The absence of such a writing is matter only of defense, unless affirmatively apparent on the face of the complaint, as has been many times declared. The trial court erred in sustaining the demurrer to this count.' Only general grounds of demurrer were interposed to the defendant’s special pleas, and there was no error in overruling them. The plaintiff’s replication I) was a departure from .the complaint, and also otherwise defective; and, the matter set up in the other special replications Avhich were eliminated being also available under special replication F, no prejudice could have resulted to the plaintiff from the rulings on demurrers thereto. Whether or not the. plaintiff owned the house and lot in East Lake at the time of the trade with the defendant was, of course, not material to the validity of [620] the agreement; but the fact was otherwise in evidence, and was not controverted. Hence there was no prejudice from the allowance of this question put to the plaintiff by the defendant. Whether the plaintiff had ever himself executed a deed of the lot to the defendant was a matter within the scope of the pleadings, and was properly admitted. The fact that the plaintiff paid out money to procure the abstract of title to the lot was not, under the pleadings, admissible as an element of recoverable damage, and was properly excluded. It was not competent in this action for the defendant to show that there was a mistake in the written agreement between them as to the description of the property traded by him, nor could he contradict or vary the terms of the agreement by showing a parol understanding that “the contract was to be left open for him to get the quitclaim deed.” On settled principles of law, if the writing misrepresents the actual agreement, the mistake must be corrected, if at all, by a court of chancery. The fact that the defendant, after his failure to secure quitclaims to the Shelby county lands, offered to reconvey the lot to the plaintiff was not material to the issues, and should have been excluded. Properly construed, the agreement for the exchange of properties does not contain a warranty of title as to a purchaser, but merely a stipulation — evidently a condition precedent to the enforced acceptance of either property — that the abstracts should show clear titles, except as to the specified incumbrances. The trial judge properly charged the jury that the plaintiff could not recover under the third count for the breach of a warranty. [621] Count 4 claims upon an agreement by which the plaintiff undertook to cause the lot to be conveyed to the defendant; whereas the agreement shown required the plaintiff to transfer it. We think the variance was sufficient to justify the general affirmative charge for the defendant on this count; for we cannot say, as matter of law, that the personal deed of the plaintiff to the defendant contained no element of value to the latter. And, unless waived by the defendant, the language of the writing imported and required the making of such a deed. There was no basis for any recovery in this case upon the common counts, and the jury were properly so instructed. It was, however, competent for the defendant to waive a personal deed from the plaintiff, and to accept the title directly from another source, in full discharge of the plaintiff’s obligation in the premises. Charge 4, given for the plaintiff, thus correctly instructs the jury. The plaintiff complains, however, of a charge given for the defendant that, to find a verdict for the plaintiff, the jury must be reasonably satisfied that he “conveyed the lot to the defendant in accordance with the stipulations of the contract set up in the first count of the complaint.” Abstractly considered, this charge is certainly correct; but, as applied to the evidence, which tended to show a waiver by the defendant of a direct personal conveyance to him from the plaintiff, it was at least misleading, and should not have been given without the qualification stated. It is insisted for the appellee that the various rulings on the pleadings and evidence were, in any case, without prejulice; since (as argued) the written agreement was entirely void for want of a sufficient description of the land to be transferred by the defendant to the [622] plaintiff. The answer to this argument is that, whether the original writing was fatally defective or not, and whether the subsequent endorsement of definite land numbers on the back of the writing by the parties jointly made them a part of . the writing in compliance with the statute of frauds or not, nevertheless, in the absence of any plea of the statute of frauds, it was competent for the plaintiff to prove and recover upon a verbal emendation of the written description, made while the contract was still in fieri.—Patterson v. Ware, 10 Ala. 44; Shakespeare v. Alba, 76 Ala. 351; Espalla v. Wilson, 86 Ala. 491, 5 South. 867; Butler v. Kent, 152 Ala. 591, 44 South. 863. For the errors noted, the judgment will be reversed, and the cause remanded. Reversed and remanded. Anderson, C. J., and McClellan and -de Gtrafeenried, JJ., concur.