The defendants moved to nonsuit; motion overruled. Defendants except.
His Honor submitted these issues:
1. "Did Defendant contract and agree with plaintiff to sell her his interest in the land mentioned in the complaint, as therein alleged?" Answer: "Yes."
2. "Did defendant fail and refuse to convey to the plaintiff his interest in said land, in violation of his contract, as alleged?" Answer: "Yes."
3. "What damage, if any, is plaintiff entitled to recover?" Answer: "Fifty dollars."
From the judgment rendered defendants appealed. The evidence, taken in its most favorable light for plaintiff, tends to prove that the land, the subject-matter of the contract, belonged to the defendant A. D. K. Wallace and to the other codefendants. A contract for the sale of the land was drawn up and signed by said Wallace and the plaintiff and deposited with C. W. Goode, to be held by him until released by mutual agreement of plaintiff and A. D. K. Wallace. It was evidently deposited to await the consent of the other owners, who refused to sell, as claimed by Wallace; but we will assume, as contended by plaintiff, that it was held by Goode to await the payment of the purchase money, and was then to be delivered to plaintiff. This contract was never delivered to plaintiff, but according to Goode, her own witness, it was taken from his granddaughter by William Mitchem, plaintiff's brother-in-law, without either Goode's or defendants' knowledge or consent. It is manifest from plaintiff's own evidence that Wallace informed her fully and particularly as to the ownership of the land, and did not undertake to bind the other "sixteen heirs." We are not furnished with the charge of the judge, but we infer from the issues that the action was finally tried as one against A. D. K. Wallace alone for damages for refusal to convey his individual fourth interest, although the complaint charged the breach against all the owners. Certainly no cause of action is made out, upon plaintiff's own evidence, against the other defendants, and we think, upon consideration, that none is made out against A. D. K. Wallace himself. There is an entire failure of evidence upon the second issue, and it was incumbent upon plaintiff to establish the affirmative of that issue by a preponderance of the evidence. The only evidence bearing thereon is that of plaintiff herself and defendant Wallace. *Page 527
Upon direct examination, plaintiff stated that, after the others refused to sell, she asked Wallace to give her a chance at his part, and that he refused to consent. On cross-examination, however, the plaintiff seems to have retracted that statement for she expressly admits that Wallace agreed "that he would let me have his part, which was one-fourth interest." The defendant Wallace testifies: "Mrs. Mitchem came (642) to see me in October, 1905, and I told her that the other heirs had repudiated the contract. I told her that I would let her have my part, and she said that she did not want my part or interest unless she could get it all. J. C. Hampton and H. B. Morgan were present." These two witnesses corroborate the statement of Wallace.
Although plaintiff admitted that Wallace offered her his share of the land, and although Wallace testified to the same fact, yet plaintiff admits that she never offered to pay Wallace a penny of the purchase money and never tendered a penny to Goode, the depositary of the contract.
It seems quite plain to us that there is nothing in the evidence to sustain the finding upon the second issue, and that, upon her own showing, the plaintiff is not entitled to recover damages for breach of a contract which she made no attempt to perform on her part. If Wallace had refused to sell his part of the land, after contracting to do so, plaintiff might have been relieved of the necessity of tendering to him, or to Goode, Wallace's portion of the purchase money, which was one-fourth. But Wallace did not refuse, according to plaintiff's own admission, as well as his own testimony, and it therefore was incumbent on her to tender his part of the purchase money before she could call for specific performance or sustain an action for damages for a breach of the contract.
The motion for nonsuit is allowed.
Reversed.
(643)