author: DOUCET, Judge.

text:
    Clevie VEULEMAN, Plaintiff-Appellant, v. Tommy O’CON, Defendant-Appellee.
    No. 82-383.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 1982.

      Provosty, Sadler & deLaunay, F. Rae Swent, Trimble, Randow, Percy, Smith, Wilson & Foote, Beth Foote, Alexandria, for plaintiff-appellant.
    Michael J. Bonnette, Natchitoches, for defendant-appellee.
   DOUCET, Judge.

This is an election contest. The plaintiff-appellant, Clevie Veuleman, seeks to have the election which resulted in the victory of the defendant-appellee, Tommy O’Con, set aside. The trial court denied plaintiff’s demands and plaintiff now appeals. We affirm.

This suit arises out of an election for mayor of Robeline on June 19, 1982. Prior to that election, there had been an election on April 3, 1982, in which no candidate received a majority. On May 15, 1982, a run off election was held which resulted in a tie. The results of the June 19, 1982 election showed that defendant-appellee, Tommy O’Con received 61 votes and plaintiff-appellee, Clevie Veuleman received 56 votes. Prior to that election, plaintiff presented to the proper authorities certain objections to certain individuals having the right to vote. These objections were overruled by the Natchitoches Parish Board of Supervisors of Elections on June 19, 1982.

On June 28, 1982 plaintiff filed suit seeking to set aside the election. In her petition, plaintiff identified 8 voters whose votes were alleged to be illegal on grounds of non-residency, and further alleged misconduct, fraud and irregularities sufficient to change the result of the election. Defendant answered, alleging plaintiff had waived her right to challenge the contested voters under LSA R.S. 18:1434. Defendant also filed a reconventional demand for damages, attorney fees and costs under LSA R.S. 18:1432. After trial on the merits, the trial court dismissed both the main and reconventional demands for reasons orally stated to be:

(1) Plaintiff, Clevie Veuleman, failed to exercise due diligence in challenging the votes of Early Lee Kirkland, Beatrice Kirkland, Patricia O’Con and Kenneth O’Con and that the decision of the Board of Commissioners concerning the legality of a registration was final.

(2) Edith Marie Brown was a resident of Robeline.

(3) Linda Reliford retained the right to vote under R.S. 18:110A.

(4) Persons residing in nursing homes may vote at the place of their former residence.

(5) Plaintiff failed to allege , and prove the nonresidency of Billy Dwayne Bell or any specific fraud or irregularity with reference to his vote.

(6) Plaintiff failed to show a course of fraudulent conduct which would have prevented the electors of Robeline from expressing their will on June 19, 1982.

(7) Plaintiff’s action was not frivolous.

Judgment was signed on July 6, 1982 and plaintiff now appeals.

The issues are:

(1) Whether the waiver provision in LSA R.S. 18:1434 is applicable in the instant case.

(2) Whether the contested voters were residents of Robeline.

(3) Whether there existed misconduct, fraud and irregularities sufficient to change the result of the election.

(4) Whether the plaintiff’s action contesting the election was filed frivolously.

Louisiana Statutes Annotated R.S. 18:1434 provides as follows:

§ 1434. Waiver of objections to voter qualifications when voter is not challenged at the election
An objection to the qualifications of a voter or to an irregularity in the conduct of the election which, with the exercise of due diligence, could have been raised by a challenge of the voter or objections at the polls to the procedure is deemed waived.

Acts 1976, No. 697, § 1, eff. Jan. 1, 1978. The following provision governing challenges is pertinent to the waiver issue:

§ 196. Challenge of registration upon affidavit of voters
When two registered voters execute in duplicate an affidavit signed and sworn to before the registrar, stating that after reasonable investigation and on their information and belief the person or persons named in the affidavit are illegally registered or have lost the right to remain registered to vote in the precinct, ward, or parish in which registered, and the grounds therefor, the registrar shall within forty-eight hours mail to the registrants named in the affidavit the documents required by R.S. 18:193 or R.S. 18:195, as the case may be, together with a duplicate of the affidavit, and he shall comply with the other procedures of the applicable Section. The affidavit shall be accompanied by at least one item of evidence which tends to substantiate the challenge.
Amended by Acts 1979, No. 229, § 1, eff. July 13, 1979.

This court in Fontenot v. Lee, 359 So.2d 1071 (La.App. 3rd Cir. 1978) held:

As to subparagraph (3), our statutory law provides the procedure for attacking the improper registration of voters prior to the election and provides for challenge at the polls by a commissioner or any other person who may contend a voter is not properly registered. LSA — R.S. 18:245 and 18:352. Jurisprudence construing these statutes holds that voters who have not properly registered and qualified to vote must be formally challenged either before or at the time they offer to vote. In the absence of a formal challenge according to the statutory procedure, the qualification of a voter cannot be collaterally attacked in an election contest after the election has been completed.

Four voters were challenged on the basis of residency by plaintiff on June 4, 1982. The challenges were made by affidavit executed in due form before the registrar of voters for Natchitoches Parish. The registrar disallowed the challenges. The proper procedure was utilized by plaintiff in challenging these four voters prior to the June 19, 1982 election. Therefore, the trial court erred in finding that plaintiff did not exercise due diligence in objecting to these voters named in the petition, namely:

(1) Early Lee Kirkland
(2) Beatrice O’Dell Kirkland
(3) Kenneth Wayne O’Con
(4) Patricia Jordan O’Con

On the merits, however, the record substantiates that Early Lee Kirkland and Beatrice O’Dell Kirkland were residents of Robeline. Both testified that they lived in “the Birdwell house” in Robeline. Although the testimony indicates that the Kirklands were slightly transient in nature, they resided at the Birdwell house the majority of the time and it was the closest to a residence as their nature would allow them to acquire.

The record also supports that Kenneth Wayne O’Con and Patricia Jordan O’Con moved to Robeline on May 15,1982 and that they were living with Kenneth’s parents at the time of registration on May 18, 1982 until their new home became vacant on May 28, 1982, on which date they moved into their own home in Robeline. The O’Cons’ testimony as to this fact was corroborated by four other witnesses.

Edith Marie Brown was not challenged by plaintiff concerning her voter qualification until suit was filed. Plaintiff testified that upon examining the list of voters, she assumed the female name with the last name of Brown to be another Brown she knew to be a resident of Robe-line. She therefore felt no need to challenge Edith Marie Brown. However, any alleged mistaken identity by plaintiff only illustrates lack of due diligence.

The plaintiff admits in her brief that Linda Reliford was entitled to vote in the June election.

The record reveals that plaintiff challenged nursing home resident David So-well in the April election and her challenge was disallowed by the registrar of voters. Mr. Sowell voted in the April, May and June elections, but was not challenged in either the May or June election. We pre-termit any determination as to the necessity of challenging a voter under the provisions of R.S. 18:111 in each and every election for a single office as we find that the challenged voter here was clearly a qualified voter.

The trial court ruled that the nursing home residents may maintain the right to vote in the precinct in which they formerly resided. The majority rule in other states is that persons in public or charitable institutions do not, by their mere presence therein, lose their right to vote at their former residence. 29 C.J.S. Elections § 23 1965. Louisiana Revised Statutes 18:101, subd. B provides that “if a citizen resides at more than one place in the state with intention to reside there indefinitely, he may register to vote at only one of the places at which he resides.” In the instant case, the record reveals that Mr. Sowell maintains a fully furnished residence in Robeline, and thus was clearly entitled to vote in the precinct of that residence.

The vote of Billy DeWayne Bell is challenged on the grounds of opponent’s misconduct, to wit: That defendant offered to use his influence as a deputy sheriff to suppress an arrest warrant on said voter in exchange for his patronage. The trial judge found that the plaintiff utterly failed in her burden of proof. That factual finding which hinges upon assessment of witnesses’ credibility is subject to the established rule of appellate review that unless manifestly erroneous it will not be disturbed. Canter v. Koehring, 283 So.2d 716 (La.1973). With regard to appellate review of election contests, the Louisiana Supreme Court in Moreau v. Tonry, 339 So.2d 3 (La.1976) stated:

“If the candidate cannot prove he would have been elected ‘but for irregularities or fraud’, our jurisprudence refers to an alternative: if the court finds the proven frauds and irregularities are of such a serious nature that the voters have been deprived of the free expression of their will, the election will be nullified.
“. .. For this Court to render such a drastic order, there must be a clear showing that a course of fraudulent conduct was employed which effectually prevented the electors from expressing their will’’. Lewis v. Democratic Executive Committee, 232 La. 732, 95 So.2d 292 (1957).” (emphasis added)

Applying the above principles to the facts herein, we find no manifest error.

There is a question of fraud concerning an affidavit executed by Early Lee Kirkland. Mr. Kirkland testified that he executed an affidavit stating that he was not a resident of Robeline at the time defendant took him to register and did not understand that he had to be a resident of Robeline to vote in the election. However, at trial Mr. Kirkland stated that he had been living in Robeline ever since February, 1982. He testified that he made that false affidavit because of “harrassment” by Mrs. Veuleman; that she scared him by telling him the penalties for sleeping on someone’s porch. Mr. Kirkland stated that he later executed a counter affidavit declaring his residency in Robeline and that he did not understand what he was signing when he signed the first affidavit. The trial court chose to believe Mr. Kirkland’s explanation and this finding of fact cannot be considered manifestly erroneous.

The record illustrates that the plaintiff was justified in questioning the propriety of certain occurrences. Thus, the trial court’s judgment denying defendant damages and attorneys fees for a frivolously filed election suit was well founded.

For the reasons assigned, the judgment of the trial court is affirmed, with all costs assessed against the plaintiff-appellant.

AFFIRMED.

JUDGMENT

For the reasons to follow, judgment of the trial court is affirmed, with all costs assessed against the plaintiff-appellant.

      . The motion for appeal was signed on July 6, 1982, with the return date of July 21, 1982. LSA R.S. 18:1409(D) states that the return date shall not exceed 5 days after rendition of judgment. Counsel for both parties agreed to waive the 5 day period set forth in LSA R.S. 18:1409 and agreed to the 15 day period, acknowledging that the lengthy trial court record could not be transcribed and sent to the court of appeal within 5 days.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Steve SWAGGERTY.
    No. 82-K-52.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 1982.

      Dale C. Wilks, New Orleans, for relator.
    Melvin Zeno, Asst. Dist. Atty., Gretna, for respondent.
   Relator, Steve Swaggerty, was found guilty of forcible rape (R.S. 14:42) by a jury. On June 30, 1982, the trial judge sentenced the defendant to ten (10) years at hard labor; eight (8) years of which were suspended and defendant was ordered to serve two (2) years in the custody of the Department of Corrections. The court additionally placed the defendant on active probation for a period of five (5) years upon his release and recommended a first offender institution for the term of confinement.

A motion for appeal was filed July 9, 1982. A motion to set bail pending appeal was filed July 13, 1982 and was denied by the trial judge on July 19, 1982. From this ruling the relator has invoked our supervisory jurisdiction pursuant to L.S.A.Constitution Article 5 Section 10.

Relator contends in his application for relief that La.Constitution Article 1 Section 18 and La.C.Cr.P. Article 314 mandates that the trial judge set bail when the sentence actually imposed is less than five (5) years. La.C.Cr.P. Article 314 provides in part:

“After sentence and until final judgment, bail shall be allowed if a sentence of five years or less is actually imposed. Bail may be allowed after sentence and until final judgment if the sentence actually imposed exceeds imprisonment for five years, except when the court has reason to believe, based on competent evidence, that the release of the person convicted will pose a danger to any other person or the community.”

Relator argues that Article 314 means that if the sentence imposed does not actually incarcerate the defendant for more than five (5) years, then bail pending appeal is mandatory — rather than discretionary with the trial judge. (Emphasis added.)

We do not agree. In applying the provision of Article 314, the total sentence imposed must be considered. In State v. Glass, 389 So.2d 387 Justice Marcus wrote;

“We consider the better interpretation of this provision to be one that places the right of bail after sentencing and until final judgment upon the total sentence actually imposed on the defendant in this case.”

Accordingly, in this case the total sentence imposed by the court was ten (10) years in the custody of the Department of Corrections. Although a portion was suspended, ten (10) years imprisonment was actually imposed; thus the trial judge had the discretion to deny bail.

We feel he has not abused this discretion given him under C.Cr.P. Article 314.

Writ denied this 30th day of July, 1982, Gretna, Louisiana.

EDWARD A. DUFRESNE, JR., J.

JOHN C. BOUTALL, J.

CHARLES GRISBAUM, JR., J.


author: JASPER E. JONES, Judge.

text:
    SALES PURCHASE CORPORATION, Plaintiff-Appellant, v. Edgar Clive PUCKETT, et al., Defendants-Appellees.
    No. 14912.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.
    Rehearing Denied July 23, 1982.
    John G. Loftin, Monroe, for plaintiff-appellant.
    Joe D. Guerriero, Monroe, Blaine Adkins, West Monroe, for defendants-appellees.
    Before PRICE, JASPER E. JONES and MARVIN, JJ.
   JASPER E. JONES, Judge.

This is a garnishment proceeding. The controversy springs from Sales Purchase Corporation’s (hereinafter SPC) attempt to satisfy its judgment against Edgar and Clementine Puckett, in solido, for the sum of $6,233.74.

THE FACTS

The parties involved in this controversy are SPC, plaintiff, Clementine or Estelle Puckett, a defendant, Dr. Barry Bradley, intervenor, and Joe D. Guerriero, Puckett’s attorney in a separate tort action in which she was the plaintiff.

On September 17, 1981, SPC obtained a judgment against Edgar Puckett, solidary obligor with Clementine Puckett, for $6,233.74. A writ of fieri facias was issued on October 7, 1981. That day SPC seized the interest of Ms. Puckett in her tort action Number 127,376, Puckett v. Ezell, et al., in Fourth Judicial District Court. SPC was then informed that Puckett’s suit had been settled on October 6, 1981 for the sum of $6,500.

On October 16, 1981, SPC garnished Puckett’s property in the hands of her attorney, Joe D. Guerriero. Guerriero answered the garnishment interrogatories that the funds in his possession belonging to Puckett were limited to $2,812.67 with the remainder of the settlement proceeds owed as follows:

Bank Charges_ $ 8.50
Joe D. Guerriero (Legal Fees)._ 2,163.33
Dr. Barry Bradley (Medical
Fees)_ 1,490.00
Dr. F. D. Peyton (Medical Fees) 25.00

Dr. Bradley intervened asserting that his fee was secured against the settlement proceeds by his “Doctor’s Lien” agreement and that his claim should be recognized as superior to all others. SPC answered the intervention and filed a motion traversing the answers to its interrogatories.

The motion was heard and the district judge rendered judgment ordering the settlement funds disbursed as follows:

Joe D. Guerriero_ $2,163.33
Dr. Barry Bradley_ 1,490.00
Sheriff for benefit of SPC_ 2,837.67
Bank Charges_ 8.50

SPC appeals and asserts five assignments of error. Appellant contends that the district judge erred in (1) finding its seizure of Puckett’s interest in her suit invalid; (2) finding the “Doctor’s Lien” effective against third parties when the defendants in the tort suit had not been notified of it; (3) ruling that the lien transferred Ms. Puckett’s rights to Bradley in a manner effective against third parties; (4) finding that notice to Guerriero transferred Puckett’s rights to Bradley when given while Guerriero was not Puckett’s obligee; and (5) giving effect to the “Doctor’s Lien” agreement as a lien, pledge or assignment when the amount of the debt was not mentioned in the instrument.

On appeal SPC concedes that the judgment is correct as to the attorney’s fees and bank charges and attacks the judgment only as it relates to Dr. Bradley’s fee. Thus, this case requires the resolution of two issues — (1) was the attempted seizure of Puckett’s interest in her suit effective, and (2) if not, does the “Doctor’s Lien” agreement have any effect entitling Dr. Bradley to a preference over SPC?

ISSUE NO. 1

SPC contends that its seizure of the interest in the suit was effective, even though done after settlement, because it was done before the drafts representing the settlement were paid. We disagree.

A draft or check is conditional payment and when honored on presentment constitutes payment as of the date received. Seliga v. American Mutual Liability Insurance Co., 174 So.2d 878 (La.App. 4th Cir. 1965); Ivy v. American Road Ins. Co., 409 So.2d 549 (La.1981). Therefore, it is insignificant that the drafts had not been paid when the seizure was attempted.

The compromise of a pending action by the parties ends the suit. Bowden v. State Farm Mutual Ins. Co., 150 So.2d 655 (La.App. 3d Cir. 1963). Here the compromise took place before the seizure, the suit was ended at the time of the seizure and the seizure was ineffective.

The appellant’s first assignment of error is without merit.

ISSUE NO. 2

Through assignments No. 2-5 appellant contends that its garnishment should give it a preference over Dr. Bradley because of various defects which render the “Doctor’s Lien” ineffective as a lien, assignment or pledge. The issue here, however, is not merely whether the “Doctor’s Lien” agreement is a valid lien, assignment or pledge. The issue is — is the “Doctor’s Lien” agreement effective on any basis, to deprive appellant of the preference it would normally have achieved by virtue of the garnishment?

The “Doctor’s Lien” agreement is reproduced below:

The well written reasons of the district judge show that he did not give effect to the agreement as a lien, pledge or assignment. Rather, the district judge found the agreement to constitute a promise by Puckett to pay the medical bills, a grant to the doctor of the right to collect them from the proceeds of her suit, and an order to her agent, Guerriero, to carry out those promises. We are substantially in accord with that analysis.

The consent to establish an agency relationship may be express or implied and such a relationship may be created by parties even though they do not intend to do so. Busby v. Walker, 84 So.2d 304 (La.App. 2d Cir. 1955). An agency relationship is created when one consents for another to act for him and subject to his control and the other agrees to do so. Automotive Finance Co. v. Kesk, Inc., 200 So.2d 136 (La.App. 4th Cir. 1967). An implied agency is often established by the words and conduct of the parties and the circumstances of the case. Busby, supra.

Dr. Bradley provided the “Doctor’s Lien” form used in this case. In the agreement Puckett authorized and directed Guer-riero to pay directly to Bradley sums owed for medical services. Guerriero agreed to observe all the terms above “and to withhold such sums from any settlement, judgment or verdict as may be necessary to adequately protect” Dr. Bradley.

The circumstances of this case make it clear that the agreement was made with the consent of Puckett, Guerriero and Bradley. The consent of Puckett and Guerriero is shown by their signatures on the document. The consent of Dr. Bradley is shown by his actions in furnishing the form, his request that a signed copy be returned to him and his failure to object after receiving the copy.

Under the agreement Guerriero became an agent for both Puckett and Bradley. He was Puckett’s agent to pay Bradley from the proceeds of the suit, and Bradley’s agent to receive sums from the proceeds of the suit on the account of Puckett. Thus, when Guerriero received the drafts, approximately ten days before the garnishment, he immediately began holding them in three different capacities — (1) for himself to the extent of his fees, (2) as Dr. Bradley’s agent to the extent of $1,490, and (3) as Puckett’s agent for the remainder.

At the time of the garnishment, Guerrie-ro held only $2,837.67 belonging to Puckett. That one of the drafts had not been paid by then is irrelevant. Seliga; Ivy; supra. SPC’s garnishment did not give it rights superior to Bradley’s.

This conclusion is supported by the jurisprudence.

In Williams v. Piner & Co., 10 La.Ann. 277 (1855), a quantity of cotton was shipped to a commercial firm by one party for the account of another party. The firm was instructed to forward the proceeds of the sale of the cotton to the beneficiary party and that party approved the arrangement. After the sale, plaintiff, a creditor of the shipping party, attached the proceeds. The supreme court dissolved the attachment and recognized the beneficiary as entitled to the proceeds of the sale.

J. Burnside & Co. v. McKinley and Moore, 12 La.Ann. 505 (1857), involved facts similar to those of Williams. Defendant shipped cotton to the garnishee with instructions to sell it and pay the proceeds to the interve-nor. The garnishee notified the intervenor of the arrangement and suggested that the cotton be held until the price rose before sale. The intervenor assented the arrangement. After the cotton was sold, but before its delivery, plaintiffs attempted to garnish it. The court found that the garnishee was acting as trustee for the interve-nor and that the intervenor had a vested interest in the cotton, and its proceeds, entitling it to a preference over the creditor.

In King Finance Company v. Day, 92 So.2d 145 (La.App.Orl.1957), the court held that where a debtor places a negotiable instrument in the hands of a third person to be paid to a creditor and the creditor agrees to the arrangement, the funds may not be attached to the detriment of the consenting creditor by other creditors.

Puckett directed Guerriero to pay Bradley when he received the proceeds of the suit. Guerriero agreed to do so and Bradley consented to the arrangement and made Guerriero his agent to receive the payment. When Guerriero received the drafts these things were accomplished, and at the time of the garnishment Guerriero possessed only $2,837.67 belonging to Puckett. Thus, the agreement protected the sum owed to Bradley from SPC’s garnishment. Williams; J. Burnside & Co.; King Finance Company; supra; L. J. Dolsen & Son v. E. Brown & Son, 13 La.Ann. 551 (1858).

For the foregoing reasons the judgment is AFFIRMED at appellant’s cost.

      . On August 27, 1981, SPC had obtained a judgment for this amount against Clementine Puckett alone.

      . There were two insurer-defendants in Puckett’s action. In the settlement one insurer gave a draft for $1,000 and the other a draft for $5,500.

      . The agreement was executed in early January, 1981, months before SPC obtained its judgment and was not an attempt to defraud SPC or any other creditor’s rights.


author: SHORTESS, Judge.

text:
    Miles J. BURAS v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC.
    No. 14922.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Donald M. Fendlason, Bogalusa, for plaintiff.
    Iddo Pittman, Jr., Hammond, for defendant.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Miles J. Buras (plaintiff) slipped and fell on a white seedless grape which was on the produce department floor of the Bogalusa A & P store, at approximately 10:30 p. m. on a disputed day in 1979. Shortly after the occurrence, Tomas Cox, the store manager, came out of the stock room and saw plaintiff on the floor in the produce aisle.

Cox testified that plaintiff told him, “I slipped on a grape,” and showed it to him; that he saw a grape which had been mashed on the floor, at the end of skid marks; that he also saw several other grapes on the floor; and that the floor was white tile, with tan and brown flecks.

From an adverse judgment which awarded plaintiff $7,500.00 in general damages, defendant has suspensively appealed.

The only factual dispute relative to liability was the date of the accident. Plaintiff has a medical history, with numerous objective physical and mental problems, one of which is his inability to recall times and dates. Cox’s report of the accident showed that it occurred at approximately 10:30 p. m. on May 27,1979. Plaintiff testified that he thought it occurred on July 3, 1979. Plaintiff also testified that on the same night he fell, his sons took him to the Boga-lusa Charity Hospital. Dr. Romeo Hernandez saw plaintiff at this hospital on June 29, 1979, at 10:54 p. m., at which time plaintiff had back complaints from a fall at the A & P store. Notwithstanding the problem as to dates, the trial judge resolved the discrepancies in plaintiff’s favor, and we cannot say that he was clearly erroneous in so doing. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The burden of proof shifts to the defendant to exculpate itself from liability, after plaintiff proves the presence of foreign matter on the floor which he did not see which caused him to fall and injure himself. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976). Both sides admitted that grapes were on the floor. Plaintiff did not see them, stepped on one, fell, and injured his back. Therefore, defendant had the duty of going forward with evidence to exculpate itself from negligence and establish that periodic inspections were made, or that other reasonable protective measures were taken.

Cox testified that he was safety captain for the store; that the safety captain’s duty was to inspect it periodically during the day and night, but he had developed no set pattern or safety routine; that the store had been mopped between 5:00 and 6:00 a. m. and was swept during the day as needed; that he came on duty at 6:00 p. m., and it had not been swept just before he arrived and was not swept after he got to work. A minimum of four to six hours elapsed, therefore, without any sweeping or cleaning of these floors. The evidence also indicated that the store was a large one, occupying over 28,000 square feet; but there were only four employees on duty at the time of the accident, and most of them were restocking shelves and making price checks. The trial judge found that the defendants had failed to rebut the presumption of negligence, and we agree with that finding based on the record, which clearly indicates that no inspections had taken place for hours preceding this occurrence.

Unfortunately, plaintiff suffers from a myriad of physical and emotional problems which pre-date his accident by many years. He had been unemployed and on Social Security disability for twelve years. Spine trouble and gastrointestinal complaints are his primary physical problems. His treating physician, Dr. Franklin Hayden, describing his emotional background as a “psychiatric mess; ” testified that he suffered from wild delusions, ranging from hysteria to schizophrenia. Dr. Hernandez, who saw plaintiff on June 29, found nothing objective and only gave him medication for his pain and anxiety.

Dr. Hayden, whose deposition was introduced in evidence, first saw plaintiff in August of 1979. X-rays he took in September indicated osteo-arthritic bridging of the low back between the first and second lumbar vertebrae and ribbing of all lumbar vertebrae and a congenital defect which he described as spina bifida. On five visits from August, 1979, through October, 1979, plaintiff had many complaints, always including his back, and spasm was always noted. On November 7, Dr. Hayden hospitalized plaintiff for four days. Dr. Hayden was of the opinion that plaintiff’s pain was a result of the fall he had in the Summer of 1979 which aggravated his pre-existing spinal condition. The trial court found it:

.. . very difficult to determine to what extent the slip and fall in the A & P aggravated his pre-existing condition, but after reviewing all the evidence, the court is convinced that the sum of $7,500.00 would amply compensate for the injuries that he received to his pre-ex-isting back condition.

We have analyzed the same medical record and agree that it is difficult to determine the extent of the aggravation, but also agree that plaintiff’s pre-existing spinal condition was aggravated by this fall. The trial judge did not abuse his great discretion in his award of damages. Reek v. Stevens, 373 So.2d 498 (La.1979).

For the above reasons, the judgment of the trial court is affirmed at defendant’s costs.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Mrs. Gloria BERGERON et al., Plaintiffs-Appellees. v. MID-AMERICAN CASUALTY COMPANY et al., United States Fidelity & Guaranty Company, Defendant-Appellant.
    No. 82-54.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Vernon C. McManus of Tate & McManus, Eunice, for defendant-appellant.
    J. Wendel Fusilier, Ville Platte, for plaintiffs-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

Plaintiffs filed the instant suit seeking damages for personal injuries allegedly received by Jackie Blanchard, minor daughter of Gloria B. Bergeron, as a result of an automobile accident. Among others, Mid-American Casualty Company (Mid-American), insurer of the vehicle owned by Barney Deshotels and United States Fidelity & Guaranty Company (USF&G), plaintiffs' uninsured motorist carrier, were named as parties defendant. Prior to trial, plaintiffs settled with all defendants, including Mid-American and USF&G. The record contains two judgments, both dated April 15, 1981, one of which dismisses plaintiffs’ suit as against Mid-American with prejudice, and the other of which dismisses plaintiffs’ suit with prejudice as to USF&G.

The judgment dated April 15, 1981, effecting a dismissal of plaintiffs’ suit as to among others, Mid-American, contains the following provision:

“It is ordered, adjudged and decreed that the law suit of the plaintiffs, Gloria B. Bergeron and Jackie Blanchard, be and the same hereby is, dismissed with full prejudice as to Mid-American Casualty Company, J. Barney Deshotels and Timothy Scott Deshotels, upon payment by said defendants of all court costs.”

The judgment effecting dismissal of plaintiffs’ suit as to USF&G contains no decree ordering payment of any costs by USF&G but does contain the following sentence which precedes the decree portion of the judgment:

“... and on further suggesting that defendant United States Fidelity & Casualty Company will be responsible for all costs of this suit through date of this judgment in the event that plaintiff is cast for costs . .

Both of the aforesaid judgments are now final, no appeals having been taken therefrom.

The record on appeal next contains a pleading filed by plaintiffs seeking the issuance of a rule against Mid-American and USF&G ordering them to show cause on a date and time to be fixed by the court why the costs totalling $526.40 should not be paid by the defendants, Mid-American and USF&G. This rule was tried and resulted in a judgment being rendered ordering the defendants, Mid-American and USF&G, to pay court costs in the amount of $569.40, each to pay one-half (V2) as well as one-half (V2) of the costs of the rule nisi. USF&G has appealed from this latter judgment. Mid-American and plaintiffs have neither appealed nor answered USF&G’s appeal.

Essentially USF&G contends that the trial court erred because the judgment on the rule nisi, casting USF&G for one-half (V2) of the court costs, is clearly inconsistent with a verbal agreement of all parties which resulted in the rendition of the judgments of dismissal dated April 15, 1981.

The trial court, in written reasons for judgment, stated as follows:

“The court is unable to determine which of the two judgments of dismissal was first rendered, and as they contain conflicting provisions as to costs, the court considers that the only equitable resolution is to cast both defendants for costs in equal proportions."

We do not consider it important to determine which of the judgments dated April 15, 1981 was rendered first for we fail to find, as did the trial court, that these judgments contain conflicting provisions as to the payment of costs.

The judgment of the trial court dismissing plaintiffs’ suit as to USF&G makes no provision for the payment by USF&G of any costs of court and the preamble to such decree portion specifically provides that USF&G is to be responsible for costs of court only in the event that the plaintiff is ultimately cast for costs. There has been no showing made that the plaintiff has been cast for any costs in the instant suit. On the other hand, the judgment dismissing plaintiffs’ suit as against Mid-American specifically decrees that Mid-American and their co-defendants, the Deshotels, are to pay all costs of court and, as aforestated, this judgment is now final and res judicata. Accordingly, it was error for the trial court to render judgment on the rule nisi ordering payment of court costs in the instant case, one-half (V2) by USF&G and one-half (V2) by Mid-American.

For the above and foregoing reasons we reverse the judgment appealed from insofar as it casts USF&G for the payment of any of the court costs incurred in the instant suit or in the trial of the rule to compel payment of costs. In all other respects the judgment appealed from is affirmed, in that, neither plaintiffs nor Mid-American have appealed or answered the appeal of USF&G.

All costs of this appeal are to be paid by plaintiffs-appellees.

REVERSED IN PART AND AFFIRMED IN PART.

      . A copy in full of the judgments of dismissal dated April 15, 1981 are attached hereto as an appendix to this opinion but are not made a part hereof and are not to be published.

      . As we appreciate the rule in question it was not one to determine liability for costs, but rather to tax the costs, the liability for which had already been decreed.


author: PER CURIAM. JONES, Justice

text:
    Floyd TEW and Perla T. Tew v. Tommie Lewis JONES and Winn-Dixie Stores, Inc.
    81-8.
    Supreme Court of Alabama.
    June 4, 1982.
    Rehearing Denied July 28, 1982.
    George E. Trawick, Ariton, for appellants.
    William L. Lee, III and William C. Carn, III, of Lee & Mclnish, Dothan, for appel-lees.
   PER CURIAM.

This is a suit by Plaintiffs Floyd and Perla Tew to recover damages for injuries to Mr. Tew resulting from a collision between Defendant Winn-Dixie’s truck, driven by Defendant Jones, with Tew’s vehicle. Plaintiffs’ complaint alleged both negligence and wantonness on the part of Defendants. Defendants denied all claims and further alleged contributory negligence as an affirmative defense. Judgment was entered on a directed verdict for Defendants on the count of wantonness and on a jury verdict for Defendants on the count of negligence and on Mrs. Tew’s derivative claim for loss of consortium.

This appeal claims error in the trial court’s rulings that there was not a’seintilla of evidence in support of Plaintiffs’ wantonness count, granting Defendants’ motion for a directed verdict on that count, and denying Plaintiff’s motion for new trial.

Plaintiffs, citing the cases of Lankford v. Mong, 283 Ala. 24, 214 So.2d 301 (1968), and Gunnells v. Dethrage, 366 So.2d 1104 (Ala.1979), maintain that “[i]t was error to exclude the wanton count from jury consideration when there was at least a scintilla that defendant driver had a consciousness or awareness of sleepiness, tiredness, and fatigue but continued to drive with reckless indifference to the consequences.”

The evidence is uncontradicted as to the workday of Defendant Jones prior to the accident. Jones arose at 1:30 A.M. on December 15, 1977, after five-and-one-half hours of sleep. He arrived at the Winn-Dixie warehouse in Montgomery at 1:45 A.M., “punched in” at 2:00 A.M., and left for Florida at 3:00 A.M. From that time until the time of the accident at 5:30 that afternoon, Defendant Jones continued to drive and make deliveries. His testimony indicated “breaks” for breakfast and for a soft drink at 2 P.M.

Plaintiffs contend that the evidence of the length of Defendant Jones’s workday indicated at least a scintilla of proof of Jones’s consciousness of sleepiness, tiredness, and fatigue and, therefore, the trial court erred in taking the issue of wantonness from the jury.

We do not agree and we affirm the judgment of the trial court.

In Lankford v. Mong, supra, this Court reiterated the standard for determining the issue of alleged wantonness:

“Wantonness is the conscious doing of some act or omission of some duty under knowledge of the existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Before a party can be said to be guilty of wanton conduct, it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury.” Lankford, at 283 Ala. 26, 214 So.2d 301.

Further, as Plaintiffs carefully point out, the requisite knowledge for the imposition of liability for wantonness in the instant case was a realization of the “premonitory symptoms” of sleep, and such a symptom “need not be shown by direct proof. It may be made to appear, like any other fact, by showing circumstances from which the fact or actual knowledge is a legitimate inference.” Lankford, at 283 Ala. 26, 214 So.2d 301.

Factually, however, both Lankford and Gunnells are clearly distinguishable from the instant case. In Lankford, the defendant driver admitted that he could have fallen asleep, that he had been “losing sleep lately,” and that the last thing he remembered seeing was a speed limit sign two tenths of a mile away from the bridge abutment which his car struck. In the later case of Gunnells, the evidence showed that the driver testified that he may have been drowsy and that his car had drifted across the center of the road just before the accident; that the driver told an ambulance attendant that he had dozed off two or three times prior to the accident; and that the passenger in the defendant’s car testified that the car had run off the road two times before the accident occurred.

The case now before us is devoid of “circumstances from which the fact or actual knowledge [of Jones’s sleepiness] is a legitimate inference.” The schedule of Jones’s workday, the amount of sleep he had had the night before, and the number of “breaks” he had had during the day in no way tends to show that Jones was sleepy or that he was, at the time of the accident, exhibiting premonitory symptoms of sleep. But, more than this, there is no evidence, direct or circumstantial, that furnishes any reasonable inference that Jones “consciously and intentionally did some wrongful act or omitted some known duty which produced the injury.” Indeed, for the trial court to have denied the motion for directed verdict would have been to permit the jury to engage in pure speculation and equate a long workday with the requisites for wanton conduct resulting in the injury complained of.

We hold that the trial court did not err in granting a directed verdict as to the wanton count nor in denying a new trial.

AFFIRMED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.

JONES, J., concurs specially.

JONES, Justice

(concurring specially).

I concur completely with the Court’s holding that the evidence was insufficient to withstand a directed verdict motion on the wanton count. I concur specially in order to clarify what I perceive as a common misunderstanding of the scintilla rule and its application. Without attempting a detailed review of the case law development of the rule, and at the risk of oversimplification, I would observe, initially, that the term “scintilla” was originally used in the context of extolling the sanctity of the right of trial by jury. Generally speaking, the earliest references to the scintilla rule were in the nature of admonitions to the trial bench not to substitute its judgment for that of the jury as the factfinder.

From this innocent and noble beginning, it has evolved into a state of confusion. This confusion is perhaps best dramatized by the somewhat common belief that the scintilla rule, in a given case, may mandate the submission of a case to the jury, on the one hand, while a verdict based on a mere scintilla of evidence, on the other hand, will not withstand a post-judgment motion for J.N.O.V.

I believe this misconception is rooted in the failure of the cases to adequately articulate a definitive test which can be readily applied. Indeed, the cases are replete with the “definition” of scintilla (gleam, glimmer, spark, etc.), but devoid of any expression of a yardstick by which the trial judge can measure the sufficiency of the evidence as a requisite for its submission to the jury. In other words, the mere definition of “scintilla” falls short of the requisite test for submission of the case to the jury.

I would state the test as follows: Whether the party having the burden of proof has adduced any evidence of probative value from which reasonable persons may fairly and reasonably infer the material fact sought to be proved. If so, whether such evidence, or a reasonable inference therefrom, if believed, when taken together with all the other evidence bearing on the essential elements of the case (or the defense), if believed, is legally sufficient to support the plaintiff’s theory of the case or the defendant’s affirmative defense.

The application of this test — any evidence which, if believed, would allow reasonable persons to infer a material fact — compels the submission of a case to the jury. Otherwise, the facts sought to be proved necessarily rest on speculation, mere guess, or conjecture.

If the trial judge concludes that this two-pronged test has been met, he then properly denies a motion for a directed verdict, as well as a post-judgment motion for J.N. O.V., the test for each challenge being the same. A motion for a new trial on the ground that the verdict is against the great weight and preponderance of the evidence, of course, addresses itself to the sound discretion of the trial judge and invokes an entirely different test. In this context, then, a motion for a new trial assumes (although it may be stated in the alternative) that the sufficiency of the evidence test has been met, but asks the court for relief by way of a new trial because the verdict is so against the great weight and preponderance of the evidence as to be palpably wrong and manifestly unjust.

Just as the scintilla of evidence concept serves to admonish the trial judge not to withdraw a material factual issue from the jury’s consideration and determination pursuant to the “any evidence of probative value” test set out above, the trial judge should exercise his discretion to grant a new trial on the “great weight and preponderance of the evidence” ground only in the most extreme cases. The armor that un-dergirds both principles, of course, is the sanctity of the jury verdict.

      . For two articles that furnish excellent insight into this problem, see J. Hoffman, “The Scintilla Rule and Other Topics,” 43 Ala.Law. 259 (1982); J. Hoffman, “Alabama’s Scintilla Rule,” 28 Ala.L.Rev. 592 (1977).

      . Penticost v. Massey, 202 Ala. 681, 81 So. 637 (1919).


author: JONES, Justice.

text:
    J. A. CLANTON v. BAINS OIL COMPANY, INC., and A. S. Bains, III.
    81-160.
    Supreme Court of Alabama.
    June 25, 1982.
    Rehearing Denied July 23, 1982.
    Bishop K. Walker, Jr. and Walter W. Kennedy, III of Nash & Walker, Oneonta, for appellant.

      Jack Martin Bains, Oneonta, for appellee Bains Oil Co., Inc.
    Thomas B. Prickett, II, Oneonta, for ap-pellee A. S. Bains, III.
   JONES, Justice.

Appellant J. A. Clanton initiated this cause in a two-count complaint, which as amended is premised upon breach of contract and fraudulent misrepresentation, allegedly emanating from negotiations between Clanton and Appellee A. S. Bains regarding the possibility at some prospective date of a sale of Bains’s oil distributorship to Clanton.

Upon a jury trial, at the close of Plaintiff’s evidence, the trial court granted Defendants’ motions for directed verdicts. From the denial of his motion for a new trial, Clanton appeals. We affirm.

Clanton began his career in the oil industry in 1965 as a sales trainee for Texaco. In 1970, Clanton was appointed general operations manager of Texaco’s Montgomery, Alabama, facilities.

In January of 1976, while still employed with Texaco, he commenced a series of discussions with Bains regarding the possibility at some future date of purchasing Bains’s oil distributorship in Oneonta, Alabama. Following such discourse, Clanton obtained stationery from Bains Oil Company, Inc., and had his wife type a “letter,” entitled “A Suggestive Draft of Intent.” This memorandum and attachments, reflecting many of the parties’ ideas from previous conversations, was thereafter forwarded to, and signed by, Bains.

Subsequently, Clanton resigned his position with Texaco and began full-time employment with Bains Oil Company, Inc. Under the parties’ agreement, Clanton entered into a six-month trial employment with Bains Oil. Extremely relevant to this appeal is the last sentence of the memorandum, which states, “The total purpose of the above is the transfer of operations to one J. A. Clanton in the future.” (Emphasis added.) Additionally, on an attachment to this writing was embodied the phrase,

“Objective: Total fairness to all concerned.” The memorandum and its attachments are devoid of any listing of assets purportedly to be included in a future sale, the date of such sale, or any amount reflecting the sales price of the business.

Clanton’s testimony concerning his information as to an approximate sales price of the business prior to his “letter” of February, 1976, is summarized as follows:

“Q. Now at the time this paper, this letter was written, took place around February 8th, 1976. I believe you testified that — Had there ever been a representation made to you about the value of the assets or the assets of Bains Oil Company?
“A. There was only one.
“Q. Was it before or after this letter?
“A. It was before.
“Q. And what was that representation?
“A. Three hundred thousand.
“Q. And at that time were you also told that there was a debt owing by Bains Oil Company to a bank here in town of about a hundred thousand dollars?
“A. No sir, it was more.
“Q. It was more than a hundred thousand dollars?
“A. Yes sir.
“Q. But before this you were told about that?
“A. I was told, yes.
“Q. Was there any representation made to you as to whether that three hundred thousand dollar figure took into account the hundred thousand dollar debt?
“A. No sir.
“Q. It never was mentioned whether it did or whether it didn’t?
“A. That’s correct.”

In June or July of 1978, Clanton requested a formal proposal from Bains, constituting an offer to sell. Pursuant to this inquiry, Bains, on September 11, 1978, forwarded to Clanton a formal offer of sale of the assets and inventory of Bains Oil, with an asking price of $403,000.00.

Clanton rejected Bains’s original offer of $403,000.00, while submitting two counter proposals, both of which were refused by Bains on September 28,1978. A short time thereafter, Clanton’s employment with Bains Oil was terminated.

I. Breach of Contract

Included in Clanton’s “Issues Presented,” though not vigorously argued, is the contention that the trial court erred in directing a defendant’s verdict on the contract claim. Suffice it to say that we fully endorse the trial judge’s finding that the evidence of record falls woefully short of the merest suggestion that Bains breached any contract with Clanton.

Elementary to contract principles is the axiom that “agreements to later agree are not enforceable.” Cowin v. Salmon, 244 Ala. 285, 13 So.2d 190 (1943). Clearly, the memorandum and attachments evidenced, if anything, no more than an agreement to agree at a future date upon terms and conditions of a contract. See Coley v. Lang, 339 So.2d 70 (Ala.Civ.App.1976).

II. Misrepresentation

The crux of this appeal, as we perceive it, is Clanton’s strenuous contention that, incorporated within the discussions, as well as the memorandum and its attachments, was an intent by Bains to wilfully misrepresent to Clanton his (Bains’s) prospective intentions of selling Bains Oil, Inc. The essence of this argument is succinctly stated in the record on appeal by Clanton’s own testimony:

“Q. So what you are saying then, is that Sid said he’d sell you the business on a fair and equitable basis and you’re saying he didn’t.
“A. That’s correct.
“Q. Is that in a nutshell what we’re talking about?
“A. That’s correct.”

We are unable to glean from the evidence of record before us even the slightest inference supportive of Clanton’s supposition of Bains’s fraudulent activities. Stated simply, Clanton bottoms his theory of fraud on his personal dissatisfaction with. Bains’s $403,000.00 formal offer to sell Bains Oil, which Clanton rejected.

In order for promises or opinions to constitute fraudulent misrepresentations, there must have been at the time the representations were made an intention not to do the act promised, and such promise or opinion must have been given with intent to deceive. Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314 (1953). A promise, to constitute fraud, must be made with the intent not to perform it. Schwab v. Carter, 226 Ala. 173, 145 So. 450 (1933).

While a plaintiff may meet, by circumstantial evidence, this burden of proving a present intent not to perform a future act as promised, the circumstances shown by the evidence of record must be such that the jury, as reasonable persons, may fairly and reasonably infer the ultimate fact sought to be proved. Here, not only do we find a total absence of any evidence of probative value tending to show Bains’s intent not to perform the agreement to sell as promised, but, as we have seen, Clanton’s own testimony respecting Bains’s approximate estimation of the value of the business is to the contrary.

Admittedly, if Bains had led Clanton to believe that, at the close of Clanton’s six-month temporary employment period, he (Bains) would sell the business to Clan-ton for approximately $200,000 ($300,000 less the $100,000 indebtedness), and then, six months later, Bains formalized that agreement with a nonnegotiable $400,000 offer, such evidence could support an inference that Clanton was fraudulently induced to accept temporary employment with the view of purchasing the business for an approximate price when, in fact, Bains, at the time of the original inducement, intended to deceive Clanton in that he did not so intend to sell.

But this is not the case before us. In spite of the admonition of our cases disfavoring. directed verdicts, our view of the evidence of record does not disclose any evidentiary basis to overcome Defendants’ motions.

The trial judge was correct in his determination as to the absence of any evidence of fraud, and his judgment based upon a directed verdict is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, SHORES and EMBRY, JJ., concur.

      . The record reflects that no offer or counteroffer was ever accepted by either of the parties.


text:
    OPINION OF THE JUSTICES.
    No. 296.
    Supreme Court of Alabama.
    July 2, 1982.
   To the Members of the Senate

State Capitol

Montgomery, Alabama

Gentlemen:

We are in receipt of Senate Resolution No. 16 requesting an advisory opinion of the Justices relative to pending Senate Bill 88, which would create an additional circuit judgeship for the Tenth Judicial Circuit.

Senate Resolution No. 16 is as follows:

“BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we do respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinions of the important constitutional question which [has] arisen concerning the pending S.B. 88 of the 1982 Second Special Session, which bill pertains, inter alia, to create a new judgeship in the Tenth Judicial Circuit. Copies of said bill are attached hereto and made a part hereof by reference.
“1. Does S.B. 88, which provides for the creation of an additional circuit judgeship in Jefferson County and does not require such position to be filled by appointment on nomination made by a judicial commission violate the provisions of the Constitution of Alabama of 1901, as amended?
“RESOLVED FURTHER That the Secretary of the Senate is hereby directed to send sufficient copies of the pending S.B. 88 to the Clerk of the Supreme Court of Alabama and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this resolution.”

We respectfully decline to answer the question presented because the Justices have consistently declined to give advisory opinions on the general constitutionality of pending legislation, and have restricted such opinions to questions of the constitutionality of pending legislation under specific provisions of the Constitution. Opinion of the Justices, 335 So.2d 392 (Ala.1976); Opinion of the Justices, 373 So.2d 1050 (Ala.1979); Opinion of the Justices, 252 Ala. 527, 41 So.2d 775 (1949).

In August of 1981 the Justices declined to answer a similar question regarding the creation of additional judgeships in the Tenth Judicial Circuit. A copy of that opinion is attached.

Respectfully submitted,

C. C. TORBERT, JR. Chief Justice

JAMES H. FAULKNER

RICHARD L. JONES

RENEAU P. ALMON

T. ERIC EMBRY

SAM A. BEATTY Justices

       Reporter’s note: the Court did not incorporate the bill into this opinion.

       Reporter’s note: the Court did not incorporate the opinion into this opinion.


text:
    Donna McJENKIN and Tommy C. McJenkin v. CENTRAL BANK OF TUSCALOOSA, N. A.
    81-345.
    Supreme Court of Alabama.
    July 9, 1982.

      William P. Gray, Jr. of Gray & Espy, Tuscaloosa, for appellants.
    Raymond E. Ward of Ray, Oliver & Ward, Tuscaloosa, for appellee.
   JONES, Justice.

Appellants Donna McJenkin and Tommy C. McJenkin initiated this cause against Ap-pellee Central Bank of Tuscaloosa, N. A. (Bank), seeking, inter alia, a permanent injunction against the threatened foreclosure of a mortgage by Bank on the home of Ms. McJenkin. Additionally, the McJenkins sought an accounting of all monies paid and owing Bank by them under the mortgage, damages of $125,000 for Bank’s alleged breach of contract, and a temporary injunction against the foreclosure pending a final hearing.

On January 15, 1982, the trial court denied the prayer for a temporary injunction. On the same date, the McJenkins filed notice of appeal, accompanied by a court approved supersedeas bond for the explicit purpose of maintaining the status quo among the parties pending an appeal of the court’s order. Three days later, on January 18,1982, in violation of the terms and conditions of the supersedeas, Bank sold the property at public auction. Bank, being the highest and only bidder at the sale, purchased the property and thereupon executed and delivered to itself a mortgage foreclosure deed.

On March 1,1982, the trial court denied a petition to set aside the mortgage foreclosure deed. Subsequently, the McJenkins filed with this Court a motion to restore injunction and set aside mortgage foreclosure deed during the pendency of this appeal. Because we reverse the trial court’s interlocutory order denying the temporary injunction, thus maintaining the status quo during the pendency of the proceedings on the merits, we need not address the motion with respect to Bank’s violation of the su-persedeas bond.

On August 2, 1977, Tommy C. McJenkin, then single, procured from Bank a loan of $19,500. McJenkin executed and delivered to Bank a promissory note for that amount. The note called for payments of $316.22 per month, commencing on September 2, 1977, and due thereafter by the 2nd of each month. McJenkin also executed and delivered to Bank a real estate mortgage on his homeplace as security for the note. In addition to the traditional default-in-payment acceleration clause contained in the note, the mortgage included a “due on sale” provision.

Subsequent to his signing of the note and mortgage, Tommy and Donna McJenkin were married. In June of 1980, the parties were divorced, with Mr. McJenkin conveying to Ms. McJenkin all of his “estate, right, title, interest” in the property previously mortgaged to Bank as security for the loan.

At the time she obtained the parties’ homeplace in 1980, Donna McJenkin discussed with Manley Neighbors, an agent for Bank, the propriety of her maintaining the property in her name and making the monthly payments. According to Ms. McJenkin, Neighbors agreed. While there had been an arrearage, Ms. McJenkin was told by Neighbors to continue making the monthly payments, not let the arrearage get any larger, and catch up as soon as she could. As of January 15, 1982 (the date of the preliminary injunction hearing), Bank had received from Ms. McJenkin all monies then due and owing it, and had given her receipts for them.

Despite the conveyance of the parties homeplace to Ms. McJenkin by Mr. McJen-kin, monthly statements by Bank were thereafter delivered to Mr. McJenkin, who would then forward them to Ms. McJenkin. On or about November 6, 1981, Ms. McJen-kin received correspondence from Bank’s lawyers to the effect that she was in arrears for September and October of that year, that Bank considered the loan in default and would accelerate immediately. Upon her receipt thereof, Ms. McJenkin phoned Bank’s lawyer, explaining that such allegations were erroneous, and that she had in fact remitted both payments to Bank. Ms. McJenkin alleged and testified that she was not in arrears for the months of September or October, as contended by Bank, and that she timely made the December, 1981, and the January, 1982, payments.

During June or July of 1981, Mr. McJen-kin, then divorced, filed for bankruptcy. In the course of a hearing thereon, Bank, through its attorneys, raised no objection to the ownership of the property then reposed in Ms. McJenkin, but stated their only concern was the continuation of monthly payments as provided by the mortgage and note.

Bank threatened foreclosure in late 1981, resulting in the instant suit. Despite the inherent complexities of this cause and numerous issues raised by both parties for our consideration, we narrow our focus of concentration to the trial court’s denial of the preliminary injunction, which is the only order appealed from.

On January 15, 1982, the trial court conducted a hearing on the McJenkins’ request for temporary injunctive relief vis-a-vis Bank’s threatened foreclosure of the mortgage. We quote the following pertinent excerpts from the record of that proceeding:

“THE COURT: ... This is a lawsuit in which I anticipate a jury will have to decide.... I would think an injunction would issue if something were going to happen to the plaintiff to cause him irreparable harm.... [I]f steps are being taken to foreclose the mortgage, I would
think we would have to hold up on the actual foreclosure until a jury verdict. ... I think I could give an injunction asking the bank to hold up on the foreclosure proceedings, if nothing else. . . .
“THE COURT: Well, I am frequently called upon to stop foreclosure proceedings, and generally it gets down to the issue whether the debt is owed. As far as I know, they are usually issued where these disputes come up. ... I mean if there is a valid dispute between the parties or if the parties are going to lose their property by foreclosure, I would think generally speaking, of course, an injunction would be issued ....
“... The fact I did issue it, gentlemen, I don’t think would prejudice anybody . .. . ”

Then, at a later point in the record, the following transpired:

“THE COURT: Let me ask a question. Are you contending Mr. McJenkin conveyed mortgaged property illegally?
“MR. RAY: Sir, we have not had an opportunity to file an answer, but he conveyed the property. It has a due-on-sale clause in the mortgage.
“THE COURT: Well, what I’m concerned about now, if Mr. McJenkin in some manner, sold, gave away property he no longer has a legal title to, if I could be reasonably satisfied of that fact, I don’t think I will issue an injunction.
“THE COURT: ... but I don’t think if a man has mortgaged property and disposes of it, which is a criminal act, if I may speak frankly, I don’t think under those circumstances I should issue an injunction ....
“THE COURT: Go ahead, I am somewhat shocked by the turn in events. We have here, well, I will use the term criminal act, . ..
“THE COURT: I will say this, gentlemen. I’m not going to issue an injunction where the parties have illegally, if somebody has disposed of mortgaged property.
“MR. GRAY. Judge, they have not illegally disposed of mortgaged property. This is what we are saying.
“THE COURT: ... I don’t know; but at this juncture, I just don’t feel that I should issue an injunction where the parties have conveyed mortgaged property, which is a felony....’’
“THE COURT: Let me say this. If Mr. McJenkin had not conveyed his interest in the settlement, I would go ahead and issue the injunction....”

Thereupon, the trial court issued an order denying the temporary injunction. After the trial court’s denial of their motion for temporary injunctive relief, but before the conclusion of that hearing, the McJenkins requested and were afforded permission to appeal from that order.

At this point in the record, we find the following:

“MR. GRAY: I understand. Would you allow us to take an appeal from your order?
“THE COURT: Oh, absolutely.
“MR. GRAY: Will you set a supersede-as bond, Your Honor, please, so they cannot proceed with the foreclosure? We will post a supersedeas bond. [Emphasis added.]
“THE COURT: There again will be something that will have to be agreed upon ... but if you want to agree on a supersedeas — what amount, $5,000?
“MR. RAY: That will be fine.”

In Alabama Education Association v. The Board of Trustees of the University of Alabama, 374 So.2d 258 (Ala.1979), the Court stated:

“Initially, we define the perimeter of our scope of review in an appeal from an order granting a motion for preliminary injunction. Wide discretion is accorded the trial judge hearing the application and deciding whether to grant a temporary injunction and his action will not be disturbed on appeal unless he abuses his discretion. Willowbrook Country Club, Inc. v. Ferrell, 286 Ala. 281, 239 So.2d 298 (1970). His discretion is a legal or judicial one subject to review for abuse or improper exercise, as where there has been a violation of some established rule of law or principle of equity, or a clear misapprehension of the controlling law. Lorch, Inc. v. Bessemer Mall Shopping Center, Inc., 294 Ala. 17, 310 So.2d 872 (1975). Wherein an abuse of discretion is clearly made to appear, the appellate court will reverse the order or decree. Lorch, Inc.” 374 So.2d at 260.

The Court went on to hold:

“To establish an abuse of that discretion, an appellant must show that the trial judge committed a clear and palpable error which, unless corrected, will constitute a manifest injustice.” 374 So.2d at 261.

It appears in retrospect that the trial judge premised his denial of the motion for preliminary injunction on the supposition that Tommy McJenkin, through his conveyance of the mortgaged property to his wife, had committed a “criminal act” or a “felony.”

Code 1975, § 13-4-1, reads as follows:

“Any person who sells or conveys any personal property, upon which he has given a written mortgage, lien or deed of trust, and which is then unsatisfied, in whole or in part, without first obtaining the consent of the lawful holder thereof to such sale or conveyance, shall, on conviction, be fined not more than $500.00 and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months, one or both, at the discretion of the jury.” (Emphasis added.)

Conspiciously absent from the statute is any reference to “real” property. And, as this is the only provision within Alabama criminal jurisprudence speaking to the “illegality” of conveying mortgaged property, it seems apparent that this section formed the basis of the trial judge’s sudden turnabout from what seemed a virtual pronouncement of his order granting the temporary injunction. Lorch; Alabama Education Association.

Indeed, conveyance of mortgaged real property, within and without the context of marital dispute settlements, is commonplace. It goes without saying that such conveyances are subject to the terms and conditions of all existing encumbrances and all outstanding interests of third parties. Likewise, the law imposes sanctions upon those who convey mortgaged property with the intent to defraud. But there is nothing, absolutely nothing, that even approaches an illegal, much less criminal, act in Mr. McJenkin’s conduct in conveying his interest in the subject property to his former wife.

Taking the McJenkins’ allegations and sworn testimony as true for the purposes of our instant review, we agree with the trial judge’s initial inclination to grant the temporary injunction. To be sure, if Bank had notice of the transfer of title, accepted eighteen monthly payments thereafter from Ms. McJenkin, and then instituted foreclosure proceedings based solely upon its delayed exercise of the “due on sale” provision, and at a time when all due installments were fully paid, there is more than a mere probability that the McJenkins will prevail in that portion of their pending claim seeking an injunction against Bank’s foreclosure of the property.

A “due on sale” acceleration clause, not unlike other acceleration clauses, while giving an option to the holder to declare the full amount due, is not self-executing. Default does not ipso facto mature the whole debt. Walker Bank & Trust Co. v. A. P. Neilson, 26 Utah 2d 383, 490 P.2d 328 (1970). And the election of the holder to declare the acceleration of the due date of the whole debt must be exercised within a reasonable time after default. Malouff v. Midland Federal Savings and Loan Association, 181 Colo. 294, 509 P.2d 1240 (1973). See, also, Tierce v. APS Co., 382 So.2d 485 (Ala.1979).

We are mindful of the fact that this is an appeal from an interlocutory order authorized under ARAP 4(a)(1)(A), and that the case on the merits is yet to be tried. Nothing we have said in this opinion should be construed as prejudicing the rights of the parties to fully develop the evidentiary bases for their respective claims and defenses. Our recital of the facts is limited to our understanding of the posture of the proceedings before the trial judge at the time of the hearing on the McJenkins’ request for temporary injunction.

Under the posture of the case as revealed by the record before us, we hold that the trial judge acted under a clear misapprehension of controlling law in declining to issue a temporary injunction on the stated ground that Mr. McJenkin had committed a criminal act by his conveyance of the mortgaged property to his former wife pursuant to a valid divorce decree issued more than eighteen months previously.

Therefore, we reverse the order of the trial judge and remand this cause with instructions for the issuance of an appropriate order setting aside the foreclosure deed, for correction of the recordation thereof, and for the issuance of an injunction to stay any further foreclosure proceedings pending the outcome of this cause on the merits.

REVERSED AND REMANDED WITH INSTRUCTIONS.

ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and FAULKNER, J., concur in the result.

MADDOX, J., not sitting.

      . For a recent United States Supreme Court case upholding the validity of a “due on sale” clause, in the context of a federal savings and loan association’s real estate mortgage, see, Fidelity Federal Savings and Loan Association v. De La Cuesta, - U.S. -, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982).


author: EMBRY, Justice.

text:
    RMP, INC., formerly known as Redstone Military Packaging, Inc. v. Howard O. ARLEDGE, a/k/a H. O. Arledge.
    80-570.
    Supreme Court of Alabama.
    July 16, 1982.
    John Mark McDaniel of McDaniel & McDaniel, Huntsville, for appellant.
    John F. Porter, III of Livingston, Porter & Paulk, Scottsboro, for appellee.
   EMBRY, Justice.

This case was tried before a jury; that jury returned a verdict in favor of appellee, Arledge. The trial court entered judgment in his favor and dismissed the action. Appellant, RMP, Inc., filed a motion for new trial; it was denied. RMP appeals from the judgment and the denial of its motion for new trial.

Both the verdict and judgment are amply supported by the evidence of record as well as applicable law.

We are compelled to the conclusion that a licensed practicing attorney, of even very limited experience, could readily see that an appeal in this ease would, under no circumstances, result in reversal.

Appellee, Arledge has filed a motion for assessment of damages on account of the appeal being a frivolous one, pursuant to Rule 38, ARAP. We agree that the appeal is frivolous and will assess costs against the appellant accordingly.

For the reasons stated, the judgment below is affirmed and the sum of $500 is taxed as costs against appellant, RMP, Inc., on account of the appeal being a frivolous one.

JUDGMENT AFFIRMED; MOTION FOR ASSESSMENT OF DAMAGES FOR FRIVOLOUS APPEAL GRANTED.

TORBERT, C. J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


author: PER CURIAM.

text:
    Robert R. RICHARDSON v. Robert V. RICHARDSON, et al.
    81-172.
    Supreme Court of Alabama.
    July 16, 1982.

      J. G. Speake of Speake, Speake & Reich, Moulton, for appellant.
    D. L. Martin, Moulton, for appellees.
   PER CURIAM.

This appeal presents the question of whether a life tenant has the right to a judicially ordered sale of two tracts of land, with reinvestment of the proceeds, where the owner of the vested remainder is a minor.

Plaintiff, Robert R. Richardson is the father of the two defendants, Robert V. Richardson, and Juanna Lee Richardson. The father filed this action in circuit court seeking sale of lands in which his deceased mother had left him a life estate with the remainder interests devised to his two children as tenants in common, in equal shares and to unborn contingent remaindermen as stated in the following provision of her will:

“... My home place, where I live, which was conveyed to me and my late husband by Mrs. Delashaw and by my husband to me by deed recorded in the Probate Office of Lawrence County, Alabama in Deed Book 22 on page 187, and the forty acres of land owned by me across Highway No. 157, and which property was formerly owned by Elias Pruit (See Deed Book 26, page 189; Deed Book 19, page 396; and Deed Book 22, page 494), I hereby will and devise to my said son, Robert Roosevelt Richardson, for and during his natural life and at his death to my grandson, Robert Vaughan (Bobby) Richardson, and any other grandchildren which I might have. It being understood that if Bobby is my only grandson at that time, the title to such property shall vest in him; and if there are other grandchildren the title shall vest equally in all my grandchildren, or their descendants, share and share alike.”

The complaint further sought reinvestment of the proceeds from the sales in interest bearing securities, with the net income to be paid to plaintiff during his lifetime, and the principal to be paid over to his children, or their heirs, upon plaintiff’s death.

The son, of the age of majority, answered with a general denial of the allegations of the complaint and waiver of notice of trial. He did not, however, appear at trial, nor was he represented by counsel at that trial. A guardian ad litem was appointed to represent the minor daughter, as well as the class of unborn contingent remaindermen. The guardian ad litem denied the allegations of the complaint and contested the case on its merits.

The trial court adjudged that plaintiff “has not shown a legal basis for sale of the suit property and the Court specifically denies his claim for relief.”

Plaintiff contended the trial court has jurisdiction to grant the requested relief under authority of Young v. Rice, 280 Ala. 581, 196 So.2d 698 (1967); with which contention defendants agreed. Defendants state the issue to be whether the sales would be in the best interest of all the classes whose interests in the property would be affected.

We opine, however, that plaintiff has no right to a sale of the lands in question. In Young, supra, all persons in esse who owned an interest in the suit lands had joined in a contract for its sale. The holding of this court in that case was stated as follows:

“We hold that our equity courts do have the power and authority to order a judicial sale of lands for reinvestment under the supervision of the court of the entire fee or title of the real property when there may be contingent remain-dermen.”

The rationale for this decision is evident in the court’s recitation from 33 Am.Jur. Life Estates, Remainders, etc. § 265, p. 743, as follows:

“ ‘The reasons for the development of the peculiarly American doctrine of non-statutory equitable judicial sale of entire interests of the fee in property given to various holders of present and future interests are typical of the causes of general development of equitable jurisprudence, and are stated with equal emphasis not only in the very recent decisions espousing the principle, but in its first progenitors. * * * In cases where partition cannot be maintained, however, it is often necessary to afford relief as between holders of present and future interests, as a matter of social policy, and it is necessary to the best interests of society that there be a power lodged in some judicial tribunal, authorized, in certain exigencies, to unfetter the titles of estates, since otherwise they may be shackled to an inconvenient extent. In accordance with their traditional policy, the courts of equity have assumed jurisdiction to rectify this evil, with cogent reasoning upon which to base their stand. To say that the court cannot, under circumstances where both present and future interests in property are endangered through lack of a sale thereof, convey away the fee of the property by ordering a judicial sale and reinvestment of the proceeds, would be to assert a doctrine which would render conditional limitations and contingent remainders an intolerable evil to a growing and prosperous community. Thus to shackle estates without the power of relief, unless every person having a contingent and possible interest could be brought before the court as a party complainant or defendant, according to the usual forms and ordinary practice of the court, would be to sacrifice the rights and interests of the present generation to those of posterity, and of citizens to aliens, and would place the title to a vast amount of property in peril.... ’ ”

The court further noted that the unborn remaindermen were virtually represented by living parties before the court, who had consented to the sale. 280 Ala. 586, 196 So.2d 698.

We do not think the court in Young intended that a life tenant should have the right to a judicial sale of property where the remainder interest is vested, particularly when the vested remaindermen contest the petition for relief.

Code 1975, § 35-6-20, grants the circuit court jurisdiction to order a sale of property held by joint owners as tenants in common. However, cotenancy is an indispensable element of compulsory partition or a sale for division, and a remainderman cannot maintain a bill for sale for division against the life tenant. Ganus v. Sullivan, 267 Ala. 16, 99 So.2d 204 (1957).

We also note that Code 1975, § 35-6-80, authorizes the sale, with division of the proceeds, of realty in which a minor holds an interest as a tenant in common. Where the sale is sought by a life tenant, and contested by a vested remainderman, however, the rule of Ganus, supra, pertains, affording the life tenant no right to sale by judicial order.

It should also be noted that provisions for sales, and other dispositions of property of a minor, are found in Code 1975, § 26-4-1, et seq.; § 43-2-453; § 43-2-465 and § 43-2-467.

The guardian ad litem, attorney D. L. Martin, of Moulton, Alabama, has filed affidavits with, and in support of, his claim for fees and expenses in opposing the appeal in this case. We are of the opinion that the guardian ad litem is entitled to a fee and expense allowance in the aggregate of $1,981.74, which is hereby taxed as costs against appellant in this case.

For the reasons stated, the judgment of the trial court is due to be and is hereby affirmed and expenses and attorney fees are taxed as heretofore noted.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON, EMBRY and ADAMS, JJ., concur.


text:
    Tom LILLEY, Greg LeNoir and Edmund Zoghby v. V. A. GONZALES, a/k/a Victor Gonzales.
    81-368.
    Supreme Court of Alabama.
    July 16, 1982.
    Mark B. Reed and Richard H. Sforzini, Jr. of McDermott, Slepian, Windom & Reed, Mobile, for appellants.
    Thomas M. Galloway of Collins, Galloway & Smith, Mobile, for appellee.
   JONES, Justice.

Appellants Tom Lilley, Greg LeNoir, and Edmund Zoghby (Buyers) brought this action seeking specific performance of a contract for the sale of real property, or, in the alternative, damages of $18,000 from Ap-pellee V. A. “Victor” Gonzales for his alleged breach of the same agreement. Both parties filed motions for summary judgment. The trial court granted Gonzales’s motion while denying that of Buyers, who appeal.

We reverse.

Gonzales is the owner of a parcel of real property located at 309 West Indian Creek Drive in Mobile, Alabama. On May 29, 1981, Buyers submitted to Gonzales a written offer to purchase this property. One of the Buyers, Edmund Zoghby, a real estate agent for Roberts Brothers, Inc., of Mobile, acted as Buyers’ representative. Gonzales thereafter evidenced his acceptance of Buyers’ offer with his signature on that same instrument. Gonzales’s signature was witnessed by Richard E. Miller, his agent in the proceedings.

The documentation used for the offer and acceptance was a standard preprinted purchase agreement form used by Roberts Brothers, Inc., for such transactions. The terms of the offer and acceptance were filled in on the preprinted form as appropriate. In addition, certain provisions of the agreement were deleted, and additional matters were handwritten in the margins. A typewritten addendum was attached to and made a part of the purchase agreement.

Both parties, in support of their motions for summary judgment, submitted to the trial court documents purporting to be copies of the original purchase agreement and addendum. While an apparent dispute exists between the parties as to which of the proffered documents represents a true and correct copy of the agreement, with modifications, executed by the parties, our examination of the record fails to disclose a genuine factual dispute relative to the issue here presented. The parties’ purchase agreement provided that Buyers would pay Gonzales $33,500 for the property, to be paid as follows: $500 down as earnest money, which was paid by Buyers; $9,500 cash at closing; and a vendor’s lien signed by Buyers for the remaining $23,500. The original terms of the vendor’s lien as specifically enumerated in the purchase agreement were that it was to be paid at the rate of $225 per month for ten years; with interest at 12% per annum; with the unpaid balance to be entirely due at the end of ten years; and no penalty for prepayment at any time.

Closing was set for on or before July 2, 1981. Prior to July 2, 1981, Gonzales delivered to Roberts Brothers a vendor’s lien deed for Buyers’ signatures. Incorporated therein was the following:

“If at any time the Grantees agree to, and or, convey, or alienate any or all of their interest in the above described property in any manner the entire balance of principal plus interest remaining thereon shall become immediately due and payable at the option of the grantor, his heirs or assigns.”

Such provision is commonly referred to as a “due on sale” clause.

Close examination of the purchase agreement, signed by all parties, reveals a complete absence of any reference to a due on sale clause as being or becoming a part of the vendor’s lien deed. Gonzales, in his supporting affidavit for summary judgment, states that he did “not know what goes into a Vendor’s Lien Deed ... but I do know what I wanted and that was what I have now been told is a ‘due on sale’ clause in the deed.... If what I wanted was not in the instrument I signed then I didn’t agree to the sale.”

Buyers contend that as of July 2, 1981, they stood ready to close the transaction, but that Gonzales refused to execute a vendor’s lien deed without a due on sale clause incorporated therein. Gonzales’s attorneys tendered the vendor’s lien deed with its due on sale clause to the office of Roberts Brothers Realty, Inc., on July 2, 1981. Thereafter, according to Gonzales, he instructed his attorneys to cancel the transaction upon Buyers’ refusal to pay the $9,500 due at closing and to sign the vendor’s lien deed as amended. They cancelled the transaction by letter dated July 10, 1981.

Subsequent to the parties’ execution of their purchase agreement, and prior to the date of closing specified therein, Buyers agreed to sell the aforementioned real property to a third party for the sum of $48,500. Buyers allege that, as a result of Gonzales’s refusal to consummate the transaction, they lost that sale, and they therefore seek $15,-000, representing the difference in the price Buyers were to pay Gonzales ($33,500) and the amount they were to receive from their resale ($48,500). Additionally, Buyers seek damages of $3,000 for time and monies allegedly expended in connection with these endeavors.

I. The Purchase Agreement

Gonzales’s motion for summary judgment was founded on the following: “(1) The instrument was not an agreement of sale because there was never a meeting of the minds on the ‘due on sale’ clause. (2) If the instrument is an agreement of sale, then Plaintiffs failed to comply with the terms of same in that they did not close on time.” Both contentions are without merit.

Gonzales’s argument is premised upon a misconception of the time-honored phrase “meeting of the minds.” It is true that there is no contract unless the parties assent to the same thing and in the same sense. But if one seeks to convey his meaning by expressions importing something different, or attaches to the proposition of the other a significance not authorized, whatever injury may result from the misunderstanding must be visited upon him. Thompson v. Ray, 46 Ala. 224 (1871). Stated another way, the law of contracts is premised upon an objective rather than a subjective manifestation of intent approach.

Professor Corbin, in his treatise on contract law, speaks to the issue of mutual assent as follows:

“Agreement consists of mutual expressions; it does not consist of harmonious intentions or states of mind.... At present, however, what we observe for judicial purposes is the conduct of the parties. We observe this conduct and we describe it as the expression of a state of mind. It is by the conduct of two parties, by their bodily manifestations, that we must determine the existence of what is called agreement. That is what is meant by the anciently honored term ‘meeting of the minds.’ That is what is meant by mutual assent.
“[One] may be ‘bound’ by a contract in ways that he did not intend, foresee, or understand. The juristic effect (the resulting legal relations) of a man’s expressions in word or act may be very different from what he supposed it would be... . [B]ut it is of much greater importance to realize that the courts must determine the requirements of justice and that the legal effects thus given to expressions of agreement are seldom exactly what one or both of the agreeing parties supposed or expected.” A. Cor-bin, Corbin on Contracts § 9 (1952).

It is axiomatic that if a contract is ambiguous the court will construe it most strongly against the party who drew it. Jewell v. Jackson & Whitsitt Cotton Co., 294 Ala. 112, 313 So.2d 157 (1975).

Where, however, the language of the contract is unambiguous and plain in its expression, the court cannot alter the agreement by construction but rather must expound it as made by the parties. Flowers v. Flowers, 334 So.2d 856 (Ala.1976); Springdale Gayfer’s Store Co. v. D. H. Holmes Co., 281 Ala. 267, 201 So.2d 855 (1967).

Where a contract is unambiguous and plain in expression, we know of no canon of construction that warrants an interpretation the only effect of which is to relieve a party to the contract from consequences deemed by him hard or unfair. Where the parties express without ambiguity their intention, no court can alter the agreement, and no room for judicial construction is left. Springdale Gayfer’s Store Co., supra., citing Lee v. Cochran, 157 Ala. 311, 313, 47 So. 581 (1908).

We do not think that the purchase agreement or the addendum is ambiguous. The essential provisions therein to convey, and more specifically the terms of the vendor’s lien, are sufficient and definite enough to sustain an enforcement of the contract by this Court.

We find no evidence supportive of Gonzales’s contention that, because of the familiarity of due on sale clauses in the Mobile area, buyers were laden with the burden of negating at the time the purchase agreement was negotiated any inference that such a clause would automatically become a part of any subsequent vendor’s lien deed, despite its absence from the purchase agreement.

The purchase agreement and addendum were a valid contract, which, as such, was due to be enforced and adhered to by all parties.

II. Buyers’ Refusal to Close

Assuming arguendo, the existence of a valid contract, Gonzales next submits that Buyers breached the contract by their refusal to close on or before July 2, 1981, as mandated by the purchase agreement. We disagree.

Buyers’ refusal to close was obviously the result of Gonzales’s “after the fact” inclusion of an additional matter (i.e., the due on sale clause) not originally contained in the purchase agreement. Established principles of the law of contracts, even under the most liberal of interpretations, do not equate such action by buyers with a breach of the contract to purchase.

For the error noted, the judgment is reversed; and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and FAULKNER, AL-MON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.