Morris v. Lagerfelt , 103 Ala. 608 ( 1893 )

HEAD, J.

Assuming the validity of the contract brought to view, in this case, as a mutually binding obligation, the one hundred dollars, therein recited to have been paid by the appellant, was a cash consideration, payable at the time of the execution of the contract. The same not being paid upon the delivery of the' instrument, a right of action for its recovery at once arose. Recitals in written contracts, in reference to the payment of the consideration, like that in the present contract, are always open to explanation by parol. Neither the allegation of the present complaint nor the evidence varv the legal effect of the writing.

We think the contract was mutually binding upon the parties. For the consideration of one hundred dollars, the appellee bound himself, at any time within thirty days, to sell to the appellant the specified interest in the gold mine, upon terms and considerations particularly expressed, if, within that time, appellant should exercise his option to make the purchase and comply with the prescribed terms on his part. The contract stipulates that if the vendor, the appellee, shall refuse to make the sale or transfer, upon compliance with the terms by the appellant, the vendee, within the time stipulated, he, the vendor, will pay to the vendee one hundred dollars as liquidated damages ; and from this it is argued that no obligation was imposed upon the vendor to make the sale, but that the legal effect of the instrument was that it was left purely to his option whether he would make the sale, or repudiate it by simply restoring the consideration received. If under the agreement, properly interpreted, it be true that the vendor had the right to repudiate the promise to sell, and, in that event, incur no other responsibility or obligation than the payment of liquidated damages of one hundred dollars, we would unhesitatingly declare the instrument a mere nudum pactum, for the obvious reason that the sum fixed as liquidated damages being that sum which was paid for the option to purchase, the payment of such damages would be no more than the mere restoration of the consideration paid for the option to purchase, placing the vendor precisely where he was when the agreement was made, with no other obligation whatever resting upon him. But we do not so interpret the agreement. It clearly evidences a promise to sell and convey the specified interest in the mine upon the specified conditions and terms. It is true liquidated damages are stipulated for the breach of that promise, and the vendee, relying for his redress, upon the payment of damages for the breach, would be limited in his recovery to the stipulated sum; but the fact that the damages are liquidated by the contract for the sale of realty, as in the present case, does not affect the right of the vendee to insist upon a specific performance of the contract. In all breaches of this kind, the vendee has his election to enforce specific performance of the contract, or, waiving that, sue at law for damages for the breach. If the latter redress is elected, and the damages have not been liquidated by the agreement of the parties, they will be assessed by the jury according to known principles of law; if liquidated by the agreement, that will be the measure of recovery. — 22 Am. & Eng. Encyc.. Law, p.' 999, and cases cited in note 4; lb. p. 970, and note 6; Haynes v. Farley, 4 Port. 528; Eads v. Murphy, 52 Ala. 520; Micou v. Ashurst, 55 Ala. 607; Cotton v. Cotton, 75 Ala. 345. We, therefore, hold, in this case, that the appellant, Morris, upon compliance with the conditions and terms of the agreement, upon his part, could have enforced performance, on the part of the other party, of his agreement to convey ; wherefore the contract was mutually obligatory, and the appellee entitled to receive the one hundred dollars agreed upon as its consideration.

Affirmed.