Campbell v. Lombardo , 153 Ala. 489 ( 1907 )

ANDERSON, J.

— When this case ivas here on former appeal this court held, and properly so, that the contract of sale entered into between “Jones & Bison,” as agents, and the appellee, Lombardo, was wholly complete and such as could be specifically enforced in equity. — Campbell v. Lombardo, 39 South. 573.

The present appeal is intended to question the sale upon the idea that Jones & Bison had no authority to make the contract in question and that the appellant, Campbell, was not bound thereby. The letter from Jones & Bison submitted an offer to “Campbell” of $1,500 for the property, bat informed him that it was not net, and that they must have 5 per cent commissions for making the sale. Campbell replied, declining to accept the offer, but made a counter one“Don’t sell for price offered. However, I am thankful for your attention and price offered. I think $1,700 is a fair price and would be acceptable to me.” The offer being for a sum with commissions deducted, the reply and counter offer clearly meant that the writer would take $1,700 gross; that is, that amount and the commissions of 5 per cent to be deducted. He did not say $1,700 net, but $1,700, meaning with the conditions annexed as contained in the former offer. The appellant, therefore, gave Jones & Bison authority to make a sale for $1,700, and was bound to carry out the contraed made by them with the appellee, if made before a withdrawal or modification of his offer, and which the evidence shows was the case, as his offer to accept the price fixed by him was absolute, and not tentative. The sale was made June 4,1903, and there was no attempt to change or modify the offer until July 2, 1903, nearly a month afterward.

“A party who seeks the specific performance of a contract, as a general rule, must show performance on his part, or an offer to perform, thereby enabling the court to render a decree for the defendant, if necessary; but the allegation is formal, and it is sufficient to show ability or willingness to perform, and it may well be doubted whether it is material, when the bill shows that complainant has partly performed, and has been prevented from making full performance by the act of his adversary, and that further offers would not be accepted, if tendered.” — Taylor v. Newton, 152 Ala. 459, 44 South. 583; Jenkins v. Harrison, 66 Ala. 345; Stewart v. Cross, 66 Ala. 22; Ashurst v. Peck, 101 Ala. 499, 14 South. 541. The proof shows that the complainant had a part of the purchase money, and was ready and willing to pay the rest upon the execution and delivery of a deed, and the contract expressly provided that the other part of the purchase money was not to be paid until the delivery of a deed. It was not, therefore, incumbent upon complainant to malee a tender, as Campbell clearly indicated, before the filing of the bill, that he would not execute and deliver the deed, even if one was tendered him by complainant, unlss he got $1,700 net. The bill offers to do equity and to pay over the money as a condition precedent to specific performance.

The decree of the chancery court is affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.