Nelson v. Shelby Manufacturing & Improvement Co. , 96 Ala. 515 ( 1893 )

COLEMAN, J.

Tbe plaintiff. Nelson, sued in assumpsit to recover back money paid as a part payment for tbe purchase of certain lots sold to him by tbe defendant, (appellee.) The right to recover is based upon two grounds: first, tbe invalidity of tbe contract of sale under tbe statute of frauds; and, second, actual fraud in tbe sale of tbe lots. It is conceded that there was no note .or memorandum of tbe agreement in writing, subscribed by Nelson, tbe plaintiff, or by other person for him, as required by tbe statute. The material facts of tbe sale and purchase, so far as tbe agreement is affected by tbe statute of frauds, are undisputed, and may be briefly stated :as follows:

.After extensive advertisement, on tbe first day of April, lots in tbe town of Shelby, Shelby county, were put upon tbe market for.sale. A fixed valuation was placed upon tbe several lots, and those wishing to purchase drew for first, second and third, &c., choice'of lots at tbe valuation fixed. Tbe town was platted and mapped, upon which could be seen tbe location and size of each lot by number and block, and-its value, and this map was tacked down on a large table in tbe office of tbe company. When it became plaintiff’s turn to select tbe lots be wished to purchase, be went into this office and selected thirteen lots located in different parts of the town, and of various valuations. As each lot was. selected by tbe plaintiff, a written memorandum, signed by tbe company’s agent, was banded to him, and when bis selections were completed, be took tbe several memoranda into an adjoining room, to tbe treasurer of tbe company, made a one-third cash payment, and received from tbe treasurer of tbe company a written receipt for tbe cash payment, and .statement of the contract of sale. Similar memoranda of tbe selection, and receipts for tbe one-third cash payment, were executed for each, of the thirteen lots, but, as they were similar, it is necessary to set out only one of each. At the' time of the selection of a lot by a purchaser, the memorandum given was as follows: “Sold to Frank Nelson, dr.: 1 lot, 1 B. 70, block 63, $10.00. For the Shelby Mf’g & Improvement Co., by J. Scliwed.” Upon its presentation to the treasurer, and the payment of the one-third cash payment, a written instrument, as follows, was executed and delivered to the purchaser: “No. 277. Shelby Manufacturing & Improvement Co., Shelby, Ala., April 3d, 1890. Eeceived of Frank Nelson, Jr., two hundred and thirty-three 33-100 dollars, being one-third cash payment on lot No. (1) of block No. 63. Bond for title to said lot will be delivered on execution of notes for balance of purchase-money, and return of this receipt properly indorsed. T. H. Hopkins.”

Suit was brought to recover bade the cash payment, without an offer to execute notes for the balance of the purchase-money, and without previous demand, or further notice of an intention not to abide by the purchase. The ability and readiness of the vendor to carry out its agreement and make good and sufficient bond for title was not questioned. "Whether the plaintiff ever had actual possession of the lots, or either of them, was a controverted question on the trial. There was no objection or hindrance to his taking possession of twelve of the lots purchased, at any time, if the purchaser had seen proper to exercise the privilege. There is some contention as to one of the lots.

We will first consider the question upon the hypothesis that plaintiff in fact never took actual possession, and see whether upon this hypothesis he is entitled to recover back the purchase-money paid. The present Statute of Frauds (Code, § 1732,) provides, that “In the following cases every agreement is void, unless such agreement, or some memorandum thereof, expressing the consideration, is in writing, and subscribed by the party charged, therewith, or some other person by him thereunto lawfully authorized in writing.” Sub-div. 5. “Every contract for the sale of lands, tenements or hereditaments, or any interest therein, except leases for a term not longer than one year, unless the purchase-money, or a portion thereof, be paid, and the purchaser be put in possession of the land by the seller.” The old Statute of Frauds read as follows: “No action shall be brought upon any contract for the sale of lands, tenements, or hereditaments, or the making any lease thereof for a longer term than one year, unless the promise or agreement, upon which such action shall be brought, or some memo-ranchim or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized.” — Clay’s Digest, p. 254, §1.

Under the older act, that to be found in Clay’s Digest, supra, it was held that a part performance, such as the payment of a part of the purchase-money, and possession, or even possession without payment, when taken in pursuance of, and under the contract, with the assent of the vendor, was sufficient to take the agreement outside the operation of the Statute of Frauds. — Danforth v. Laney, 28 Ala. 274. In such cases, notwithstanding the Statute of Frauds, both parties were bound. The vendee could enforce specific performance against the vendor, although his agreement to sell was wholly in parol. — 28 Ala., supra.

To take an agreement for the sale of land out of the influence of the present Statute of Frauds, when there is no sufficient note or memorandum in writing, there must be a payment in whole or in part of the purchase-money, and, in addition thereto, the purchaser must be put in possession of the land by the seller. When there has been a part payment of the purchase-money, and possession of the laud by the purchaser, the contract for the sale of land is excepted from the statute by its terms, and is mutually binding and enforceable by either party.

We need not consider the difference of the legal effect of the substitution of the word “subscribed” in the later act for the word “signed” as used in the older act, and the further difference that under the present act the agent who signs must have written authority. Excepting these two differences, the language of the two acts is precisely the same, — “and subscribed by the party to be char’ged.” A sound rule of interpretation requires that the same legal significance and effect be placed upon the language “subscribed by the party to be charged,” used in the present statute, as judicially declared under the former act. Many decisions had been rendered by the highest court of this State construing the Statute of Frauds enacted by the legislature, as stated in Clay’s Digest, and were in force when the present statute (both using, in this respect, the same language) was adopted; and we can not suppose the legislature was ignorant of the judicial construction placed upon the statute by other courts and by this court, when the later act was adopted.

In the case of Allen v. Booker, 2 Stewart 21, the plaintiff Booker, sued to recover back money paid upon the purchase of land. Tbe contract of sale was wholly in parol, and there was no proof of possession. The question of the ability and readiness of the vendor to comply with the terms of the contract was not raised. The trial court charged the jury that the mere payment of the purchase-money took the contract out of the operation of the Statute of Frauds, and that plaintiff could compel a specific performance on the part of the vendor, and for this reason the plaintiff could not abandon the contract and recover back the amount paid. Exception was taken to this charge; and, reviewing it, this court held that the payment of part of the purchase-money alone did not authorize a decree of specific performance. The court held that the suit was well brought, and reversed the case.

In Keith v. Patton, Ib. 38, the suit was in trover to recover the value of horses which were paid as payment for the purchase of land. The contract of sale was wholly in parol. There was no proof of possession of the land. The case, as presented on appeal, did not involve a consideration of the Statute of Frauds, as the plaintiff failed to prove title, or a conversion, or value of the horses. The court stated that the plaintiff might have recovered in detinue without a previous demand and refusal to deliver the horses, if the defendant had refused to perform the contract, and that if the formal requisite had been satisfied by proof on the trial, the judgment would be reversed on the authority of Allen v. Booker, supra.

In the case of Meredith v. Naish, 3 Stew. 207, the plaintiff sued to recover a balance due in parol for unpaid purchase-money for land. It was held that part payment of the purchase-money and possession of the laud would authorize a specific performance of the contract, and would therefore entitle the plaintiff to- a recovery. In Cope v. Williams, 4 Ala. 362, a case frequently cited in our opinions, referring to Allen v. Booker, it is said the right to recover back the purchase-money rested upon the principle that there was no such part-performance by the vendee' as to authorize him to enforce a specific performance of the contract against the vendor, and he would be remediless if he could not maintain the action, and that in Meredith v. Naish, supra, it was held that the unpaid purchase-money could be recovered, because the vendee could enforce a specific performance of the contract against his vendor.

In Johnson v. Hauson, 6 Ala. 351, it was held that when the contract was wholly in parql a vendor could not recover the balance of the purchase-money due for the land, although tbe vendee bad paid a part of tbe pui chase-money, and was in possession of tbe land. Tbe ease is cited to show tbe principle of law recognized by tbe court. Tbe conclusion is placed upon tbe proposition that “tbe contract conferred no rights upon either party.” This case may not be in harmony with other cases in our court as to tbe application of tbe law to tbe facts, but tbe conclusion of tbe court is rested upon tbe principles of law clearly recognized in tbe other cases.

In Bates v. Terrell, 7 Ala. 129, it was held that a vendor could not maintain an action upon a promissory note which did not state tbe terms of tbe contract, given for land, although tbe vendee bad paid a part of the purchase-money, and was in possession, there being no undertaking on the part of tbe vendor which imposed a legal obligation. Tbe case of Bates v. Terrell was virtually overruled in Rhodes v. Storr, 7 Ala. 348, in which tbe court held that where a note was given for tbe purchase of land, tbe contract was executed so far as tbe purchaser was concerned, and that be could not resist payment, so long as tbe vendor was willing and able to perform anything which, in good conscience, be was bound to do. Tbe conclusion of tbe court in Rhodes v. Storr, 7 Ala. 348, was reaffirmed in Gillespie v. Battle, 15 Ala. 276. In this latter case, however, tbe principle is recognized that tbe acceptance of tbe note given for the land and possession thereof by tbe purchaser bad placed tbe vendor in such a condition as to authorize tbe enforcement of a specific performance of tbe agreement against him. “It can not be said,” says tbe court, “that the consideration lias wholly failed, since tbe defendant has derived and continues to enjoy an essential benefit conferred by tbe contract, and since tbe plaintiff has placed himself in a condition which enables tbe defendant, upon tbe payment of tbe purchase-money, to enforce a specific performance of tbe agreement.”

In Donaldson v. Waters, 35 Ala. 107, there was no writing-evidencing the sale, except the receipt for a part of the purchase-money. Tbe proof showed that tbe purchaser took possession of tbe property. Tbe suit was in assumpsit to recover back tbe purchase-money. It was held that plaintiff could not recover, unless a rescission of tbe contract, prior to tbe bringing of tbe suit, was shown; and tbe burden of this proof rested on the plaintiff. The same case is reported in 30 Ala. 175, and 22 Ala. 460; and tbe doctrines declared in Cope v. Williams, supra, Allen v. Booker, supra, Meredith v. Naish, 3 Stew. 207, were affirmed.

Other cases might be cited, but these embrace tbe principal adjudications by this court, in the construction of the Statute 'of Frauds, as it stood in Olay’s Digest, upon the question involved, and now under consideration. The old statute contained the same phrase as the present, — that the note or memorandum must be “subscribed | signed] by the party to be charged therewith.” In none of the earlier cases was it held that a purchaser could recover back the purchase-money paid, unless the evidence showed that the vendor had rescinded the contract, or that the contract of sale was not obligatory upon the vendor, and could not be enforced against him, or that lie was not able to comply with his undertaking. These decisions do not go to the extent of sustaining the contention that the purchase-money could not be recovered back by the purchaser in cases where the contract was void as to both parties, merely because the vendor was willing to comply with the terms of the sale, but was not legally bound to do so.

The following adjudications were made after the enactment of the present Statute of Frauds:. — Flinn v. Barber, 64 Ala. 193. The plaintiff sued to recover back money paid on a contract for the sale of land. This court determined from the evidence that “the transaction rested wholly in parol; nor was it disputed that defendant had no title to, or estate in, the premises, and that he had not, under the agreement, let the plaintiff into possession.” This being the proof, under all the authorities, the plaintiff was entitled to recover. Much is said in this opinion, perhaps, not necessary to a conclusion upon the facts, but the gravamen of the argument is to show that if the vendor is not bound, “if he has the unqualified right to repudiate the contract, then there is no contract, and no right upon which he can retain the money.” It was further held, that the mere willingness and ability of the vendor to comply, independent of the legal right of the vendee to enforce a compliance, would not authorize a retention by him of the money paid by the purchaser ; and the principles declared in the earlier decisions, which have been cited, are clearly recognized throughout the opinion, that when there had been such a part performance as would authorize either party to enforce a specific performance against the other, that neither could repudiate the contract. The case of Chambers et al. v. Alabama Iron Co., 67 Ala. 353, was a bill for specific performance. Only one of the parties — the defendants in the bill — subscribed the writings. It is said, “When a party accepts and acts upon an agreement of this character, conferring benefits upon him, he is bound, though he may not sign it or subscribe it, to the performance of the duties • and obligation, it imposes; and, while he may claim specific performance from the party signing, the converse right exists against him, and from him specific performance may be compelled.”

In many English cases, and in some of the States, it is, held that money paid on a purchase of land can not be recovered back, if the vendor is able and willing to carry out the contract of sale, although he may be under no legal obligation to perform. We are of opinion that this principle has never prevailed in this State. In Flinn v. Barber, it is said that the validity of the contract does not depend upon the willingness or election of the vendor, but upon the sufficiency of the written note or memorandum of the contract of sale, subscribed by him, to make it obligatory upon him, or upon such a part performance by the vendee, as to remove the contract from the operation of the Statute of Frauds, so that it became mutually binding. We find nothing in the earlier or present Statutes of Frauds which supports the conclusion that a contract not enforceable against a vendor as provided in the former, or which is declared void as to him by the present statute, because there is no sufficient written note or memorandum of the agreement to comply with its mandates, subscribed by him, and which affords the vendor complete protection against his vendee, may, by his election or willingness to perform, avoid the statute, and convert a contract it declares void into a valid agreement, enforceable against a vendee, who has subscribed no note or memorandum of the agréement, and has done no more than pay a part of the purchase-money. In such a case, neither party is bound, and the contract is void by ilie very terms of the statute itself. A contract void under the Statute of Frauds is void for all purposes.

The rule here declared is not at variance with the principle “that the only signature required is that of the party against whom the contract is to be enforced,” and that there may be contracts which, by reason of the Statute of Frauds, may be enforced by one pain/, though not by the other. Benjamin on Sales, Ch. VII, § 174; Heflin v. Milton, 69 Ala. 354; Mauning v. Pippen, 86 Ala. 264; Ib. 95 Ala. 537.

The folloAving conclusions of law are deducible from the foregoing authorities, and sustained by principles of justice, and are applicable to the facts of this caseFirst, That a purchaser of land, who has paid in part or in whole the purchase-money under his contract of purchase, can not repudiate the contract and sue and recover back the money paid when there has been such a part performance on his part as to entitle him to enforce a specific performance of tbe contract against bis vendor, if tbe contract itself is free from fraud, and tliere lias been no rescission of tbe agreement, and the vendor is able to perform. Second, A purchaser can not recover bade money paid on a purchase of land, although he may not have signed or subscribed any note or memorandum in writing himself, as required-by the Statute of Frauds, and may not have gone into possession of the laud, if the vendor has on his part so complied with the Statute of Frauds by his written note or memorandum, as that he may be compelled to perform his contract by a court of equity, or held liable in damages for a breach thereof in any court of jurisdiction, and the contract itself is.free from fraud in fact. Third, Where the contract for the sale of land is binding upon the vendor, and may be enforced against him, and the consideration of his obligation was the payment in whole or in part of money by a purchaser, and the vendor’s obligation is accepted and held by the vendee in consideration of the money paid by him, the purchaser cannot, after receiving such benefit, at his election avoid the contract, so far as to entitle him to recover back the consideration paid, whether he subscribed any note or memorandum himself or not of the contract of sale, and without regard to the rights of the vendor to recover any unpaid balance of the purchase-money, if the contract was free from actual fraud, and the vendor is able to comply with his undertaking. In such a case the benefit to the promissor and detriment to the promissee is a sufficient consideration to support the contract against the promissor, at least so far as it has been executed by him by payment of the money. Fourth, That a purchaser of land may recover back the amoirnt paid (without previous demand) in all cases where the purchaser has not subscribed a note or memorandum in writing witliin the meaning of the Statute of Frauds, and was not let into possession, so as to bring the contract within tin', exception provided in the statute, and the vendor has not subscribed a note or memorandum in writing, within the requirements of'the Statute of Frauds, and has not estopped himself from asserting the invalidity of the contract. In such cases, there is no binding obligation upon either party — the vendor has parted with nothing, and the vendee has received nothing -and the money in the hands of the vendor ex aequo ei bono belongs to the purchaser.

The next question is as to the sufficiency of the note or memorandum subscribed by the vendor, or his lawfully an-thorized agent, as- a compliance with tbe Statute of Frauds, so as to create a legal obligation on bis part. Tbe receipt for tbe money is as follows: “Received of Frank Nelson, Jr., $160.66, being one-tbird cash payment on lot No. 28 of Block No. 94. Bond for title to said lot will be delivered on execution of notes for balance of purchase money and return of tliis receipt properly endorsed.” We are of opinion tbe note or memorandum subscribed by tbe vendor to execute bond for title as contained in tbe receipt for tbe money paid was void under tbe Statute of Frauds, and a failure to perform it by tbe vendor would give tbe pfaintiff no cause of action against bim. Tbe rule tbat parol evidence may be introduced to supply defects and omissions in written instruments, wbicb do not vary or contradict its terms, applies only to contracts wbicb are valid; but parol evidence is not admissible to render valid undertakings wbicb are void by 'reason of tbe Statute of- Frauds. We may concede tbe memorandum to be complete in all respects except as to tbe terms of tbe payment. It says one-tbird cash, and “notes to be executed for the balance.” Wbetber these notes are to bear interest, and, if so, the rate of interest, or to be payable in one, two, or ten years, or wbetber there are to be two or a half dozen notes, is not stated. To permit parol evidence to be introduced to supply tbe omission would break down tbe safeguards intended to be secured by the statute in all contracts for tbe sale of land. In Jenkins v. Harrison, 66 Ala. 345, 354, it is said, “Tbe written statement must contain, either expressly or by necessary inference, all tbe terms of the agreement; tbat is to say, tbe names of tbe parties, tbe subject-matter of tbe contract, tbe consideration, and the promise, and leave nothing open to future treatyand to tbe same effect is tbe case of Phillips v. Adams, 70 Ala. 376. “If tbe note or memorandum shows only a treaty pending, and not a contract concluded, or if it annex conditions, or otherwise make variations, it has no effect as a memorandum to bind tbe party from whom it proceeds. Tlie note should express the consideration, tbe terms, tbe parties, tbe property, and be signed by tbe party to be charged, or his agent.” — Carter v. Shorter, 57 Ala. 253. No specific performance of a contract can be decreed in equity, unless tbe contract be actually concluded, and certain in all its parts. If tbe matter rests in treaty, or if tbe agreement in any material particular be uncertain or undefined, equity will not interfere. — Fry on Spec. Perf. §§ 164, 202; McKibben v. Brown, 14 N. J. Eq. 13.

In Carroll v. Powell, 48 Ala. 298, cited in 57 Ala. 253, supra, tlie memorandum, after describing the land, stated as follows : “Bought by A. Carroll at $400.” Commenting on this entry, the court uses the following language, P.ECK, C. J. rendering the opinion: “It does not state the terms of the sale, whether for cash or on a credit. It is, however, insisted that as it is not stated whether the sale was for cash or on a credit, the law presumes it was for cash. Admit this to be true in ordinary sales, it does not, in cases like the present, answer the requirements of the statute. The statute requires the terms of the sale to be stated as a part of the memorandum. If the terms of the sale or any of them, depend upon inference, or stand upon a legal presumption, such inference or presumption may be rebutted by oral evidence. This would leave the terms of the sale uncertain and to be determined by the evidence of witnesses, and thus the doors to frauds and perjuries would be opened, which the statute intended to close.” See also Adams v. McMillan, 7 Port. 73. It follows from the foregoing conclusions that unless, in addition to the part payment of the purchase-money, “the purchaser be put in possession of the land by the seller,” the contract of sale is void as to both parties under the statute of frauds, and furnishes no right to have a specific performance decreed, or a cause of action for a breach of the contract of sale. Where the contract rests wholly in parol, the mere ability of the vendor to let the purchaser into possession, and his assent that the purchaser may take possession, are not enough. There must be an actual voluntary taking of possession by the purchaser, and in pursuance of his contract for the sale of the land. If he refuse to go into possession, there is no legal authority to compel him to do so. Unless there is payment of the purchase-money in whole or in part, accompanied with possession, the contract is not taken out of the provision of the statute, and imposes no obligation on either party.

Can the action be maintained without a previous demand? The authorities are almost uniform to the effect that contracts for the sale of land, although they contravene the statute of frauds, are not strictly void; and, to avoid the contract on the ground that it is offensive to the statute of frauds, it must be pleaded specially. If waived, and the contract is proven, it will be enforced*' — Shakespere v. Alba, 70 Ala. 355; Comer v. Sheehan, 74Ala. 452; Cooper v. Hornsby, 71 Ala. 62 ; Espalla v. Wilson, 86 Ala. 491; Jonas v. Fields, 83 Ala. 447 : Lewis v. Teal, 82 Ala. 290; Gillespie v. Battle, 15 Ala. 276: Patterson v. Ware, 10 Ala, s47. It is equally a well settled rule tbat, if it affirmatively appear in a bill filed to enforce a contract, void under tbe statute of frauds, advantage may be taken of it by demurrer. — Lewis v. Teal, 82 Ala. 290; Phillips v. Adams, 70 Ala. 373; Bolling v. Munchus, 63 Ala. 374. Tbe same principle is applicable in a court of law, if tbe complaint affirmatively shows tbat tbe contract counted on is void under tbe statute of frauds. No presumption arises under a contract void under tbe statute of frauds, tbat its nullifying defects will be waived by either party, and neither has a right to assume tbat it will be by the other party. If the contract is void under tbe statute of frauds, there is nothing to rescind — tbe agreement, so long as it remains unexecuted, vests neither party with any legal rights as against tbe other. — Hughes v. Hatchett, 55 Ala. 544. Money paid, or property delivered, under such conditions is held simply as money or property bad and received for tbe use of tbe owner, and a previous demand is not necessary. If the bolder received tbe money through actual fraud on bis part, and has parted with nothing, suffered no detriment in consideration, a previous demand was not a pre-requisite to tbe maintenance of a suit by tbe owner to recover it back. — Keath v. Patton, 2 Stew. 33; Allen v. Booker, supra; Rutherford v. McIver, 21 Ala. 750.

Tbe plaintiff offered in evidence an article which appeared in tbe Montgomery Advertiser prior to tbe sale, and designated a “write up.” Tbe article is not set out in tbe record, and this court can not judge of its relevancy and competency. Tbe same objection applies to certain extracts from tbe article, which are given in' tbe record. It may be tbat if tbe whole article, or the context to tbe extracts, were set out, a different significance would attach to tbe extracts than when read disconnected. It would be an unsafe practice for this court to presume tbe trial court erred, when tbe facts uj)on which the ruling was predicated are not before this court. Barwick v. Barkley, 45 Ala. 217; Parsons v. Woodward, 73 Ala. 348 ; Bynnm v. Southern Pump Co., 63 Ala. 465.

We see no objection to the testimony in permitting the witness to locate the lots on the map of the town. He had selected the lots on a map before purchasing, and the fact that he could point them out on the map at the trial was at least some evidence that he was to some extent acquainted with their location. It was data for legitimate argument in connection with other facts in evidence.

Statements and admissions of the plaintiff tbat he had offered the lots for sale, or placed them in the hands of real estate agents, or of his speaking of them as his property, were properly admitted. Such evidence tends to show claim of ownership, and the exercise of control. There is evidence that at the time of the sale notice was given that the vendor would retain the ownership and control of the houses then upon the lots. Whether the retention and renting out of the house situated in part on lots 27 and 28 by the vendor was in pursuance of the right thus reserved, until notified to remove the house, and subject to the right of the purchaser to enter and take possession of the lot purchased, or whether such holding was adverse to the purchaser, was a fact to be determined by the jury.

In Woodstock Iron Co. v. Roberts, 87 Ala. 441, it was held, that it was competent for a witness to testify “that the defendant went into jmssession of the lands and thereafter controlled the - In South & North Ala. R. R. Co. v. McLendon, 63 Ala. 276, it is said : “The true line of distinction is this, an inference necessarily involving certain facts may be stated without the facts, the inference being the equivalent of a specification of the facts,” It is termed “a shorthand rendering of the facts.” — Elliott v. Stocks, 67 Ala. 290; Turnly v. Hanna, 82 Ala. 139. The showing made by the witness Lapsley contains this statement, “The balance due in one and two years from date of first payment.” This statement was not admissible to supply a defect or omission in the written note or memorandum of the contract of sale, but was admissible upon the contention that there was a complete verbal contract for the sale of the land, and the payment of a part of the purchase-money, and possession by the purchaser, so as to bring the contract of sale within the exception provided by the statute. Where a party makes a written showing as to what an absent witness wili prove, and facts are stated in the language decided by this court to be competent, and, for the purpose of a trial, the statement by consent is admitted as evidence, it is too late, after the trial has begun, for the opposite party to raise an objection to it on the grounds that he has no right to cross-examine the witness, and to require of him explanations of his statements and the sources of his information.

The objection to the argument of opposing counsel can not be sustained. There was no exception taken at the time to the statements deemed objectionable, and no motion to exclude them. We need not consider whether there was any such improper statement of facts as to transcend the boundary of legitimate argument. — Cross v. State, 68 Ala. 484; Jackson v. Robinson, 93 Ala. 158; Ala. Gr. So. R. R. Co. v. Frazier, 93 Ala. 46; Lunsford v. Dietrich, 93 Ala. 571-2.

Under our view of the ease, it becomes unnecessary to consider at mucb length the question of actual fraud, and tbe many assignments of error upon exceptions taken to the rulings of the court upon questions of evidence applying to this feature of the case. The suit was not brought to recover damages for a breach of any of the promises or guaranties, if any were made, as to improvements to be constructed in the future. The failure to fulfill a mere promise or undertaking — something to be done in the future — -alone, will not authorize a rescission of a contract upon the ground of fraud. It is the making of such promise, having no intention, at the time, to perform it, that constitutes fraud for such a contract may be rescinded. — Birmingham Warehouse & Elevator Company v. Elyton Land Co., 93 Ala. 553, and authorities cited; Montyomery & So. R. R. Co. v. Matthews, 77 Ala. 357. Evidence of representations or promises or guaranties of enterprises to be carried out in the future were admissible only for the purpose of showing actual fraud; and to have this effect it must appear that the promissor had no intention to perform at the time they were made. As to any fact proven by plaintiff which tended to show such fraudulent purpose or intention on the part of the seller as to promises to be performed in the future, it was competent to rebut such proof by showing that the promises were made in good faith; and facts which reasonably accounted for the failure of the enterprises or promises were admissible in rebuttal. "When fraud vel non is the issue, great latitude is allowed the plaintiff, and the defendant is entitled to introduce evidence in rebuttal repelling injurious inferences.

Charges numbered 16 and 24 were erroneously given, and must operate to reverse the case. The first clause of charge 16 is not as unambiguous as it might have been written, but we are not prepared to say the words, “the plaintiff, in taking possession of the lots,” are not sufficiently qualified and limited, by the words, “would not be a trespasser,” to prevent the charge from being open to the objection that the charge assumed that plaintiff did take possession of the lots. The latter clause of the charge is objectionable, in that it declares that the receipt alone given to plaintiff for the money paid authorized the plaintiff to take possession of the lots. There is nothing in the receipt which gave the plaintiff the legal right to take possession of the lots under the contract of sale, upon the payment of one-third of the purchase-money in cash, without and until the execution of the notes. The vendor, of course, could have granted the privilege, and if tbe evidence of Mr. Bush is correct, and we may add, it is not disputed in this respect, he authorized purchasers to take possession of the lots under the receipts, and before the notes were executed, but the right thus given was under the verbal privilege, if given, and not by virtue of the receipt itself. Without verbal or written permission to that effect, before the notes were executed, there is nothing in the receipt which authorized the purchaser to take possession of the lots until there was a further compliance with the terms of sale. If the purchaser was placed in possession by the vendor, that, in connection with the part payment of the purchase-money, was sufficient to except the contract from the statute, notwithstanding the insufficiency of that receipt. Charge 24 ignores all the evidence introduced for the purpose of showing actual fraud, in the sale. It was not for the court to declare that there was no evidence which authorized the jury to infer that there were fraudulent representations as to existing facts, or material representations or promises as to future improvements, made with the intent to deceive, and without purpose to perform, and upon which the plaintiff relied and had a right to rely. However unsatisfactory the court may have considered the evidence on this phase of the case, it was for the jury to determine the bona fides of the representations and statements and promises of future performance, if any were made, from all the evidence.

The evidence tended to show that the purchase of each lot involved a separate and distinct contract. The jury may have believed that plaintiff was put in possession of some of tbe lots, and yet not of all of them. There was a separate count for the recovery of the purchase-money paid on each lot, and then one count for the whole of the purchase-money paid on them all. The jury may have been satisfied that the purchaser was put into possession of certain lots, and not of all the lots. The use of the words “certain lots” in this charge in the connection used, when referred to the evidence, was certainly misleading, if not positively erroneous.

We deem it unnecessary to pass upon each assignment of error, specifically, as the principles of law we have declared dispose of every exception reserved.

For the errors pointed out, the case must be reversed.

lie ver sed and remanded.