Syllacauga Land Co. v. Hendrix , 103 Ala. 254 ( 1893 )

McCLELLAN, J.

In the view we take of this case, but little need be said in disposing of it. To our minds the sole question in it has reference to the intention of the parties to be gathered from the terms of the bond for title which the Land Company executed and which the complainant below accepted. It is as follows :

“State oe Alabama, 1 > Enow all men by these presents, Talladega County. }

that the Marble City Land and Furnance Co., a corporation incorporated under the laws of Alabama, is held and firmly bound unto J. M. Hendrix in the sum of one thousand dollars.' The condition of the above obligation is such that, whereas for the consideration of $166.66-100 dollars this day paid the said Marble City Land and Furnace Co. by the said J. M. Hendrix, and the further sum of $333.35-100 dollars to be paid to the Marble City Land and Furnace Co. by the said J. M. Hendrix, payable in one and -two years, respectively, with interest from date, at the office of the Marble City Land and Furnace Company in Syllacauga, Alabama, the Marble City Land and Furnace Company has this day bargained and sold to the said J. M. Hendrix certain real estate situated in the city of Syllacauga, Talladega county, State of Alabama, known and designated on the map of the said Marble City Land and Furnace Company as follows : Lot No. 3, in Block No. A, fronting 60x70 feet on Curran Street and running back with equal width.

“Now if upon the payment of said notes promptly at maturity and interest, as herein stipulated, the said Marble City Land and Furnace Company causes to be made or makes to the said J. M. Hendrix, or his heirs, a good and sufficient title with covenants of warranty to the.aforesaid real.estate then this obligation to be void/ otherwise to remain in full force and effect. The' Marble City Land and Furnace Company guarantees and pledges to the purchaser hereof, that it will erect or cause tobe erected at Syllacauga, Alabama, the following manufactories, to-wit, one ten thousand spindle cotton mill; one rolling mill; one furniture factory. If the company fails to erect, or to have in diligent course of construction, said manufacturing plants at the maturity of first of said notes above described, then both of said notes shall be forfeited, and the purchaser hereof shall be released from the payment hereof; but no other penalty or liability shall be visited upon said company, on account of failure to erect said manufacturing plants as aforesaid, other than the forfeiture of the balance of the purchase money for said land evidenced by said notes as aforesaid. In testimony whereof the said Marble City Land and Furnace Company has hereunto signed its corporate name and caused its corporate seal to be hereunto affixed by its president, who is authorized thereto, on this the 9 th day of April, 1891.

Marble City Land & Furnace Company

S. E. Noble, Vice President.”

The parties could not have intended that, notwithstanding the failure of the vendor to erect the cotton mill, rolling mill and furniture factory, stipulated for and guaranteed in the bond, the vendee would not be entitled to the land except on payment of the notes as well as the cash instalment of the purchase money, for this would have been to destroy the guaranty altogether and to require complainant to pay the sum evidenced by the note when the defendant had expressly released his claim in that regard. Nor could it have been in the minds of the parties that the bond should become mere wa,ste paper and the sale of land be avoided because of the failure of the maker of the bond to perform one of its express stipulations. This would be to convert a stipulation manifestly intended for the vendee’s benefit into a stipulation for the benefit of the vendor, and to enable the latter to take advantage of its own wrong and default to the direct injury of the vendee in the loss of the cash payment. It can not be that it was in the contemplation of the parties that the guaranty should operate collaterally affording the vendee an action for damages, after paying the notes, but requiring him to pay them, for a breach of it,, for, if any one matter is plainer than another in this instrument; it is that Upon breach of the guaranty the notes should become at once forfeited, i. e., the money the vendor would otherwise have been entitled to under them should be forfeited to the vendee, and that the purchaser should be released from the payment thereof. And how there could be any duty resting on the vendee to pay money which was thus forfeited to him and his obligation to pay which is thus, the condition transpiring, expressly released, is not conceivable. There is, to our minds, but one possible construction to put on the contract evidenced by this bond — but one possible conclusion as to what the parties intended in entering into it — and that is this : The defendant sold and agreed to convey, and the complainant purchased and was to receive a conveyance of the land at the price of $166.66 if the specified mills and factory were not built or in the course of “diligent construction” at a certain future day, and at the price of $500 if said mills and factory should be built or in course of “diligent construction”-at said day. This is the essence of the contract. To so interpret it offends none of its terms nor contravenes any of them except to the extent other of its stipulations authorize and require, and it is the only construction of it which can at all be justified by the language the parties have used to express their purposes and agreements. The sale was upon the consideration of $500 in the event the mill &c, were built &c. by the day named, and upon the consideration of $166.66, if they were not so built. The condition upon which the larger consideration was to be paid was not and can never occur — the time has passed and the mills and factory nor any of them had not then been erected, nor were they or either of them then in course of erection. The state of facts upon which the other and smaller sum was to be taken as full consideration transpired before and was existent at the time of bill filed. That full consideration had then been fully paid; and the complainant was entitled to the relief prayed in his bill — the specific performance of the contract to convey evidenced by the defendant’s title bond.

The foregoing disposes of all the assignments of error discussed in the brief of counsel for appellant. Others will not be considered although there is a statement in the brief that “Each and every assignment of error is urged.” — Williams v. Spragins, Buck & Co., 102 Ala. 424.

The decree overruling the demurrer is affirmed.