Farmer v. Sellers , 137 Ala. 112 ( 1902 )

MoCLELLAN, C. J.

Bill by 'Sellers for specific performance of contract by Farmer. It is alleged that one stipulation of the contract sought to be enforced — the main one indeed — was that Farmer should convey certain lands to 'Sellers, the complainant, or to William O. Oates “as they might elect.” The bill nowhere nor in any Avay aiders that these parties have elected that the lands should be conveyed to Sellers, the complainant, as is prayed in the bill rather than to Oates, who' is not a party to the cause. It is plain that neither of these parties Avas entitled to demand a conveyance by Farmer until this election had been made. He Avas not under contract to convey to both of them or to either' of them demanding a conveyance, but his contract was to convey to that one of them Avho should be appointed by the two to receive the conveyance. Until such appointment was made, until they had elected between themselves which should take under the contract Farmer was under no duty to convey to either, and his conveyance to either would not have discharged his contract as to the'other. It is said in the brief, which is filed by William O'. Oates, counsel for appellee Sellers, that “the bill itself by Sellers with Oates’ name written therein and' thereon as a part thereof by his own hand as the solicitor of Sellers as complainant is a pretty severe, yea, conclusive estoppel of Oates against any further action by him against appellant for damages for not, conveying the land to him instead of Sellers.” ■ This suggestion does not meet the objection that the bill fails to aver the election stipulated for. Farmer is entitled to have this election made, averred and proved, before he can be called upon at all. Such is his contract. He did not agree to convey to Sellers upon the existence of facts which would raise an estoppel in pai-s against Oates to question his right to convey to Sellers;, but his agreement was to convey to Sellers in the event and only in the event Oates and Sellers should elect and appoint the latter to receive the conveyance. He stipulated for an election, not an estoppel ; and an election there must be before he can be coerced to convey to either. Moreover, if an estoppel Avould suffice, it is not averred in the bill; and if, being averred, it could be rested on the fact that Oates, the party to the 'contract, prosecutes the cause as Sellers’ solicitor, the fact that a solicitor of the same name as the Oates of the contract signs and exhibits the bill, would not establish such estoppel in point of fact. Neither the chancery court nor this court can know or say that the William O. Oates of the contract and William O. Oates solicitor signing the bill are identical, however well we may as individuals know that fact. 'So we conclude that the bill shows no estoppel against Oates,, and that an estoppel would not aid complainant if it Avere alleged. The demurrer to the bill as amended should have been sustained because of the absence of averment of the election stipulated for.

We find, no merit in the other assignments of demurrer. It is quite an error to say that the bill shows inadequacy of consideration for Farmer's -undertaking, as it also-as to say that the- contract is for the transfer of a - sheriff’s deed only and not for a conveyance of land.

The decree overruling the demurrer to the bill as amended will be reversed. A decree will be here rendered sustaining the demurrer, and allowing complainant thirty days within which to amend the bill. ■

Reversed and rendered.