This is an appeal from a decree of the circuit court of Mobile County, in equity, overruling the respondents' separate demurrers addressed to the bill of complaint as a whole and to each aspect.
The bill was filed by appellee, L. A. Zieman & Company, Inc., a corporation (hereinafter referred to as "Zieman"), against The Olen Real Estate and Investment Company, Inc., a corporation (hereinafter referred to as "Olen Real Estate"), and The Olen Company, Inc., a corporation (hereinafter referred to as "Olen Company"), for specific performance of an alleged contract entered into by Zieman and Olen Real Estate for the conveyance of certain real property in Mobile and for cancellation of a deed executed by Olen Real Estate conveying the property to Olen Company, it being alleged that said deed was executed after the contract sued on was recorded in the office of the Judge of Probate of Mobile County.
The bill alleges that on May 9, 1956, Olen Real Estate contracted in writing with appellee to sell appellee a tract of land in Mobile County consisting of approximately 21 acres for the sum of $50,000 of which the sum of $2,500 was accepted by Olen Real Estate as earnest money.
A copy of the contract is attached to the bill as an exhibit and made a part thereof. Said contract is in the form of an offer by Zieman to Olen Real Estate and an acceptance by Olen Real Estate and bears the heading "offer and acceptance." It describes the property to be conveyed and states a sale price of $50,000, payable $14,000 in cash on delivery of the deed, with the balance payable over a period of ten years in quarterly installments, together with interest at 5% per annum on the unpaid balance and with the privilege of prepaying and saving interest. The contract further provides for crediting the $2,500 earnest money on the cash payment on consummation of the trade. It further provides for the proration of taxes and insurance, for delivery and possession of the property on date of delivery of the deed, for the conveyance to be made by vendor's lien deed with warranty, for affixing revenue stamps, and for furnishing by Olen Real Estate to appellee of an owner's guaranty of title.
The alleged contract contains the following provision:
The bill alleges the following with respect to this provision, viz.:
In the bill Zieman "offers to do such equity on its part as the court may deem and direct" and avers that "it has partially complied with the terms of said contract and is ready, willing and able to carry out the balance of the terms of said contract and pay the balance due thereunder in accordance with the terms thereof."
Appellants insist that the contract shows on its face that it violates the statute of frauds and is unenforceable because Olen Real Estate's acceptance of Zieman's offer was conditional, and because a material provision of the contract, viz.: "The acceptance of this offer is subject to the release and approval of Olen's contemplated mortgagee", is so indefinite and uncertain as to call for parol evidence to explain it. It is insisted also that the bill is demurrable because it fails to allege "approval" of said mortgagee.
It may be stated as a general rule that where a material provision of a contract is left open for future treaty or negotiation the contract is rendered incomplete and uncertain, and for that reason it is unenforceable in equity. In the contract here involved nothing is left for future treaty or negotiation. The only thing left undetermined is "the release and approval of Olen's contemplated mortgagee." Such "release and approval" is a matter resting entirely with said mortgagee, not a party to the contract. That this is a condition to be fulfilled before Olen Real Estate can be required to perform the contract is not disputed. But such provision is not a condition affecting the validity of the contract to convey. Rather, it is a condition precedent to requiring performance by Olen Real Estate. Accordingly, if this condition precedent has actually occurred then it no longer stands as a barrier to requiring performance of the contract. As said in Williston on Contracts, Rev.Ed., § 666, p. 1911:
Cf. Citronelle Turpentine Co. v. Buhlig, 184 Ala. 404, 407, 63 So. 951, where it is said:
It is generally held that specific performance of a contract may be had in equity even though the contract contains a condition precedent, provided such condition precedent has been fulfilled. Pomeroy's Specific Performance of Contracts, 3d Ed., § 335, p. 731; Corbin on Contracts, Vol. 5, § 1175, pp. 766, 767.
This brings us to the insistence that the condition precedent in the instant contract is so indefinite and uncertain as to require parol evidence to explain it and that, for this reason, the contract is rendered unenforceable. The general rule as to the admissibility of parol evidence to explain ambiguities in a contract is thus stated in 49 Am.Jur., Statute of Frauds, § 322, p. 636:
In this connection, see: Pilgreen v. Miree, 258 Ala. 200, 202, 61 So.2d 456; Ben Cheeseman Realty Co. v. Thompson, 216 Ala. 9, 12, 112 So. 151; Sadler v. Radcliff, 215 Ala. 499, 503, 504, 111 So. 231; Chandler v. Wilder, 215 Ala. 209, 210, 110 So. 306; Ezzell v. S. G. Holland Stave Co., 210 Ala. 694, 696, 99 So. 78; Minge v. Green, 176 Ala. 343, 350, 58 So. 381; Alabama Central Railroad Co. v. Long, 158 Ala. 301, 304, 305, 48 So. 363; Webb v. Elyton Land Co., 105 Ala. 471, 478-479, 18 So. 178; Howison v. Bartlett, 147 Ala. 408, 411, 412, 414, 415, 40 So. 757; Howison v. Bartlett, 141 Ala. 593, 597, 37 So. 590; Angel v. Simpson, 85 Ala. 53, 55-56, 3 So. 758; Hooper v. Laney, 39 Ala. 338, 340; Ellis v. Burden, 1 Ala. 458, 464, 465-466; Waterman on the Specific Performance of Contracts, § 152, p. 200; Lawrence on Equity Jurisprudence, Vol. 1, § 131, p. 173; Pomeroy's Specific Performance of Contracts, 3d Ed., § 161, p. 411.
It is thus stated in Pilgreen v. Miree, supra [258 Ala. 200, 61 So.2d 457]:
The principle is thus recognized in Sadler v. Radcliff, supra [215 Ala. 499, 111 So. 233]:
* * * * * *
In Minge v. Green, supra [176 Ala. 343, 58 So. 383], it is said:
From Howison v. Bartlett, 141 Ala. 593, 597, 37 So. 590, 591, supra, is the following:
We think the bill sufficiently avers the happening of the event—"the release and approval of Olen's contemplated mortgagee" —made a condition precedent to Olen Real Estate's performance of the contract. Appellants argue that the bill is demurrable because it alleges only a "release" by the mortgagee and does not also allege the mortgagee's "approval." While the contract uses the words "release and approval," it seems obvious there could be no "release" by the mortgagee without its "approval." If there has been a "release," as alleged in the bill, then, necessarily, it seems to us, there has been an "approval." Considering the contract as a whole it appears that the object of the condition precedent was to protect Olen Real Estate against any obligation to convey by a "vendor's lien deed with warranty" unless its "contemplated mortgagee" (alleged in the bill to be Liberty National Life Insurance Company) should first make it possible to so convey the land by agreeing to free it from the mortgage. We do not think the word "approval," when considered in connection with the contract as a whole, can reasonably be construed as meaning the general approval or consent of the mortgagee but, instead, means its approval insofar as its mortgage is concerned. How, then, can the mortgagee's approval be shown more effectively than by releasing the mortgage in its entirety? Our view is that the bill sufficiently alleges "the release and approval" of the contemplated mortgagee.
From what we have said it follows that the decree overruling the demurrers is due to be affirmed. So ordered.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.