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08/26/94 CARLTON SANDERS GRAY v. SIMS S. WILBANKS

August 26, 1994

CARLTON SANDERS GRAY
v.
SIMS S. WILBANKS



Appeal from Elmore Circuit Court. (CV-93-316). John B. Bush, TRIAL JUDGE.

Released for Publication November 29, 1994.

Holmes

The opinion of the court was delivered by: Holmes

HOLMES, Retired Appellate Judge

Sims S. Wilbanks (seller) filed a complaint, wherein he alleged that Carlton Sanders Gray (buyer) breached the contract entered into by the parties on May 23, 1992. The buyer filed an answer, wherein he denied all allegations of the complaint and pleaded the statute of frauds as an affirmative defense.

The case was tried without a jury. After hearing all the testimony and reviewing the post-trial briefs filed by the parties regarding the statute of frauds issue, the trial court issued an order, wherein it found in favor of the seller and awarded damages in the amount of $32,144 (the sales price of $28,700 and interest in the amount of $3,444).

The buyer appeals. This case is before this court pursuant to Ala. Code 1975, § 12-2-7(6). We affirm.

On appeal the buyer contends that the trial court committed reversible error when it found in favor of the seller. The buyer argues that the sales agreement sued upon by the seller cannot be enforced because, he says, it violates the statute of frauds (Ala. Code 1975, § 7-2-201) in the following manner: there is no writing signed by the buyer which evidences the sales agreement sued upon by the seller, and the sales price of $28,700 for the houseboat exceeds $500.

The seller contends that the contract in the present case is enforceable against the buyer because it falls under an exception to the application of the statute of frauds.

In its order, the trial court stated in pertinent part:

"The court finds that the [buyer's] giving a check to the seller's agent in the amount of the purchase price with no conditions written thereon and then taking exclusive possession of the houseboat is sufficient to consummate the contract and to take it outside of the application of the statute of frauds."

Our review of the record reveals that the acts and actions of the parties were as follows: The seller requested that Ed Travis (agent), who owns and operates Castaway Island Marina, act as his agent in securing a buyer for his houseboat.

All the negotiations for the purchase of the houseboat were conducted between the agent and the buyer. The buyer made an offer, which was rejected by the seller. Thereafter, the seller made a counter-offer, which was rejected by the buyer. Then the buyer made the following counter-offer: he would purchase the houseboat for $28,700, with a running generator, a working toilet, and a boat slip paid for by the seller for six months.

The seller accepted this offer. The buyer wrote a check dated May 23, 1992, payable to the seller in the amount of $28,700, the full purchase price of the houseboat, and gave it to the agent. Upon receipt of the check for the full purchase price, the agent delivered possession and control of the houseboat to the buyer. The seller removed his personal possessions from the houseboat, and the buyer moved his personal possessions onto the houseboat. The buyer used the houseboat that weekend, which was Memorial Day weekend, and returned the boat to the boat slip, which, ...


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