Jones v. Clausell ( 2002 )

MURDOCK, Judge,

concurring specially.

I believe this is a close case. The key passage of testimony may be that given by Namon Shackelford when, in describing his conversation with Shirley Jones on Saturday, August 28,1999, he testified:

“Well, she called and said she had moved, but there was some things she had left in the house, and she would go ahead and turn her key over Monday [August 30, 1999] at five o’clock.”

I do not find in the record any express testimony that the parties mutually agreed that the surrender of possession of the premises could be postponed until August 30, 1999. While the record hints at such a conversation and at other facts that might satisfy the requirements of Watts v. Rudulph Real Estate, Inc., 675 So.2d 411 (Ala.1996), it appears to fall short of proving such facts. In any event, I cannot conclude that the trial court’s implied factual findings, and its judgment based thereon, were in error as a matter of law.