Opinion
4 Div. 370.
March 27, 1928.
Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.
Action by J. H. Radford against W. H. Spann. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Counts 3 and 4 are as follows:
"Count 3: The plaintiff claims of the defendant $500 as damages for the breach of an agreement or contract entered into between the plaintiff and the defendant on, to wit, the 15th day of October, 1924, together with the interest thereon from said date.
"Count 4: The plaintiff claims of the defendant $500 damages for, of, and on account of the following, to wit: The plaintiff entered into an agreement with the defendant in the town of Hartford on the 15th day of October, 1924, wherein the plaintiff agreed to purchase, and the defendant agreed to sell to the plaintiff a triangular lot in the town of Hartford, Geneva county, Ala., for the sum of $175, and the defendant agreed to convey to the plaintiff said property upon the payment of purchase price at a future date. The plaintiff avers that on said date, to wit, October 15, 1924, he paid the defendant $75 as a part of said purchase price of said lot of land, that subsequently, and on the 24th day of March, 1925, he paid the defendant the sum of $50 on the purchase price of the said lot, and that subsequently on, to wit, the 4th day of November, 1925, the plaintiff tendered to the defendant $50, the balance of the agreed purchase price of said lot, and requested the defendant to execute to him a conveyance of said property and to deliver the same to him, and the plaintiff avers that the defendant failed and refused to execute a conveyance to said lot of land, or to deliver the same to him according to said agreement all to the damage of the plaintiff as in this count set forth."
The demurrer to the complaint contained the following grounds:
"First. Said counts purport to be based on a contract for the sale of land, and for aught that appears, said contract was verbal.
"Second. Said counts fail to state that the contract relied upon as the basis of said counts was in writing.
"Third. Said counts fail to state that the purchase money or a portion thereof was paid and that the purchaser was put in possession of the land by the seller."
"Fourth. Said counts fail to aver that a memorandum was made reciting the consideration the purchaser was to pay for said land. The contract, the basis, of counts 3 and 4, as recited in said counts, is void under the statute of frauds.
"Fifth. Counts 3 and 4 do not state a cause of action."
Carmichael Tiller, of Geneva, and M. S. Carmichael, of Montgomery, for appellant.
The statute of frauds may be set up by demurrer, where the declaration indicates that the transaction violated the statute of frauds. Grounds 1, 2, 3, and 4 of the demurrer were good as to the fourth count. Code 1923, § 8034; Thompson v. New South Coal Co., 135 Ala. 630, 34 So. 31, 62 L.R.A. 551, 93 Am. St. Rep. 49; Bolling v. Munchus, 65 Ala. 558. Count 3 states no cause of action.
E. C. Boswell, of Geneva, for appellee.
Brief did not reach the Reporter.
In a suit upon a contract for damages for its breach, there can be no recovery except in pursuance of its terms. Thomas v. Smoot, 2 Ala. App. 407, 56 So. 1. Where none of the terms of the contract sued upon are given, manifestly no recovery could be had. It follows that count 3 of appellee's complaint stated no cause of action, and the demurrers thereto should have been sustained.
Count 4 of the complaint was subject to the first, second, third, and fourth grounds of appellant's demurrers, and the trial court erred in not so ruling. Code 1923, § 8034; Thompson v. New South Coal Co., 135 Ala. 630, 634, 34 So. 31, 62 L.R.A. 551, 93 Am. St. Rep. 49.
For the errors pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.