This is the second appeal in this case. Kinston Supply Co. v. Kelly, 200 Ala. 151, 75 So. 899.
This is an action of trespass on the case by *Page 613 the appellee against the appellant to recover damages for the destruction of a lien for rent alleged to have existed in favor of the plaintiff as landlord of one Lawrence on certain cotton grown on land theretofore owned by the plaintiff and sold to Lawrence, as evidenced by a writing of date January 23, 1913, which will appear in the statement of facts in the report of the case.
It is manifest from the averments of the complaint that the plaintiff relies upon dependent covenants or stipulations in this writing to establish the relation of landlord and tenant between Lawrence and himself, as a result of a default in the payment of the purchase money for the land; for it is averred, among other things, that by the terms of the contract of bargain and sale it is stipulated that if the said Lawrence should fail in the payment of the purchase price agreed upon for said lands, he (Lawrence) would pay to the plaintiff the sum of $80 rent. Plaintiff avers that the said Lawrence failed to pay the purchase money as agreed to be done by the terms of said contract of bargain and sale, and that thereupon the contract of bargain and sale became annulled, and the said Lawrence became legally liable to the plaintiff for the payment of $80 as rent.
By objections interposed to the writing when it was offered in evidence, and by requesting the affirmative charge in writing, the appellant asserted that the plaintiff failed by his proof to establish the relation of landlord and tenant, and hence failed to establish the fact that it had a lien on the cotton in question.
It will be noted that no time is fixed in the contract for the payment of the purchase money; the stipulations relating thereto being:
"That the party of the first part hereby agrees to bargain and sell to the party of the second part at and for the sum of $1,000.00, to be paid as hereinafter stated" certain lands, and "the party of the second part agrees and promises to pay to the party of the first part, the said sum of $1,000.00"; and, further, "it is agreed that the party of the second part shall have the privilege of paying all or any of said deferred payments before maturity, and in the event of such payment or payments, interest on said payments shall be calculated only to the date of payment. * * * The party of the second part agrees that in case of a failure to pay any of said installments when due, the party of the first part shall have the right to annul this agreement, and take possession of the premises, and retain out of the money paid under the agreement by the party of the second part $80.00 per month as rent of the premises [said amount being hereby agreed and declared by said parties to be the monthly rental value of the premises] returning the surplus, if any, to the party of the second part."
It is a familiar rule that where a writing embodies an obligation to pay money, without more, and no time is stipulated for payment, it is payable presently. Peck, Adm'r, v. Ashurst, 108 Ala. 429, 19 So. 781; Angel v. Simpson,85 Ala. 53, 3 So. 758; Hawkins v. Studdard, 132 Ga. 265,63 S.E. 852, 131 Am. St. Rep. 190.
But this rule cannot be applied here, for the reason that the writing itself contradicts this idea, in that it affirmatively appears that credit in the payment of the purchase price for the land was to be extended, and that it was to be paid in installments, in amounts not stated, and at times not stated. Therefore we have a writing from which the material part of the contract between the parties is manifestly omitted, and, in the absence of which, the intention of the parties cannot be ascertained; and, while this agreement may be subject to reformation and enforcement in a court of equity, courts of law will not undertake to give it effect, "lest, instead of enforcing a contract the parties have made, they should make for them a contract into which they did not enter." Robinson v. Bullock, 58 Ala. 618.
We are not aided by the rule of law:
"That when a contract does not specify a particular time, or appoint the happening of a particular event for performance, the presumption is that the parties intended performance within a reasonable time." Cotton v. Cotton, 75 Ala. 345.
The above-stated rule is applicable where uncertainty as to the element of time only is involved. Here, not only is the element of time of payment, but the number and amount of installments contemplated by the parties also involved, and to undertake to determine and state all of these elements from the writing itself — and we can look to nothing else — would be at most mere speculation. Cotton v. Cotton, supra.
It was essential to the plaintiff's right of recovery that he show that Lawrence made default in the payment of the purchase money, "as agreed to be done by the terms of said contract of bargain and sale." Collins v. Whigham, 58 Ala. 438; Wilkinson v. Roper, 74 Ala. 140; Drum Ezekiel v. Harrison, 83 Ala. 388,3 So. 769; Thornton v. Strauss, 79 Ala. 164. This, as we have shown, was impossible for him to do.
There is another ambiguity patent on the face of the writing, which renders it void for uncertainty. That is, in one place it stipulates for the payment of $80 per month as rent in case of default (if it stipulates for the payment of rent at all), and in another $80 per annum. As held on the former appeal, one element of the burden of proof resting on the plaintiff was to show what, if any, amount was due him for rent. Kinston Supply Co. v. Kelly, supra. In view of these inconsistent and equally positive statements as to the amount of rent to be paid, it is impossible to say which was to govern. McGowin *Page 614 Lbr. Co. v. R. J. N. R. Camp Lbr. Co., 192 Ala. 35, 68 So. 263; Chambers v. Ringstaff, 69 Ala. 140.
For these reasons, the opinion prevails that the affirmative charge should have been given for the defendant.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and ARDNER, JJ., concur.