WATERS vs. SPENCER, Adm'r, 22 Ala. 460

CHILTON, C. 3. It is unnecessary that we notice each of the charges which were refused and those given by the court separately, as the general view which we take of the law applicable to the case will dispose of them. The bill of exceptions sets out all the proof; and it is the settled rule, that the charges must be construed with reference to the proof upon which they are predicated.

It is also required of every plaintiff, to make out his case by evidence sufficient to satisfy the jury who are to pass upon it, of the truth of the material facts alleged by him of an affirmative nature, and upon which he bases his right to recover.

So, also, if the court gives instructions to the jury, adverse to the interests of the defendant, as to matters of law arising upon a given state of facts, the plaintiff must have introduced some evidence tending to prove the existence of the facts hypothetically stated, or assumed as the foundation of such charges; otherwise such instructions would be abstract, and if they mislead the jury, or have an evident, necessary tendency to mislead, the revising court will, for that reason, reverse the judgment which may have been rendered against the defendant. Keenan v. Holloway, 16 Ala. Rep. 53; Cothran v.

Moore, 1 Ala. Rep. 423. It is further well settled bjr numerous decisions of this court, that a charge which assumes that a fact is proved which is not, although the fact in itself be immaterial, may properly be refused. Thompson v. Armstrong, 5 Ala. Rep. 383; Yarborough v. Moss, 9 Ala. Rep. 382; Brown v. Isbell, 11 Ala. Rep. 1010. And it has also several times been decided, that a charge is erroneous, which withdraws from the consideration of the jury facts which are material to the plaintiff’s right to recover, and places that right on grounds wholly independent of these facts. Nabors v. Camp, 14 Ala.

Rep. 460; Carlisle v. Hill, 16 Ala. Rep. 398. Applying these general principles to the charges asked and denied by the court, as well as to those given, and we have no difficulty in arriving at a satisfactory conclusion respecting them.

It is perfectly clear to our mind, that, in the absence of all proof as to the terms of the contract which existed between Waters and Donalson, for the sale of the premises, and on account of which the money was paid which is sought to be recovered back in this action, the court very properly refused the charges asked by the counsel for the defendant below; for how could the court, in the absence of all knowledge or information respecting the nature and terms of the contract, assume that the retention of the possession by Mrs.

Donalson was inconsistent with the right to rescind, or that it was indispensable in order to the exercise and perfecting of that right that there should have been a return or an offer to return the premises ? Conceding that a contract cannot ordinarily be rescinded but by the consent of both parties to it, yet there may be, and have been many contracts, to which this rule does not apply ; and how can the court be presumed to know, in the absence of all knowledge of its terms, that this is not one of them ?

As we have abové intimated, a party who asks a charge. must pave the way for it, must put the court in possession of such facts as will enable the judge to declare the law understandingly, so as to meet and decide the case which the facts make or tend to establish. In this case, the court was left unaided by evidence, to ascertain what the agreement was, and the charges prayed sought to affix to it legal consequences which might or might not result, according as the nature and terms of the agreement might embrace or exclude them.

But we have seen that the court cannot properly assume a material fact as proved, especially in tbe absence of all testimony tending to establish it, and predicate charges upon it materially affecting the result. It follows, therefore, that there was no error in refusing the charges prayed for by the counsel for the defendant in the court below. While, however, this argument, as we think, satisfactorily shows that the court did not err in refusing the instructions prayed for, it is equally conclusive to show that the court mistook the law in the charges which were given.

When the court undertook to instruct the jury, that certain acts of Waters might be regarded by them as evidence of a violation or abandonment of the contract on his part, it was evidently deciding upon the legal effect of a contract not before it, and about which it could j udicially know nothing; non constat, by its terms, it may make provision for the retention of possession by the grantor, or, at his election, for the payment of rent by the grantee until the purchase money should be paid: or it may be the case of an ordinary sale with a bond for title, in which event the grantor may recover the possession at law as a means of enforcing his lien for the purchase money.

Be this as it may, the plaintiff failed to lay a predicate by proof for the charges which affirm that certain acts might be regarded by the jury as violative of the agreement on the part of Waters, or as evidence of a repudiation of the contract of sale on his part, justifying its abandonment by the administrator of Donalson. But there is another and fatal objection to the charge given? which asserts that the intention to abandon the contract on the part of Waters, justified the plaintiff below in treating the contract as at an end, thus enabling him to sue for the purchase money.

In no aspect of the case could the mere intention to abandon, and which was not carried out, amount to an actual abandonment, or justify the purchaser in so treating it. As well might a party who conceives an intention of violating his contract, but who does not in fact commit a breach of it, be visited with all the consequences of an actual violation.

But it is argued by the counsel for the defendant in error, that this was a mere verbal sale of real estate, void by the statute of frauds, and destitute of such circumstances of partial performance as confer upon tbe vendee a right to demand in equity a specific performance; and that consequently the purchaser might disregard it.

Without deciding upon the correctness of this conclusion as a matter of law, it is a sufficient answer to say, that the record fails to establish the premises as matter of fact; for it no where appears that the contract was verbal merely, and the letter of Donalson, coupled with the recital in the receipt of Wright which the plaintiff below introduced, and which states that Donalson was then in possession of the property on account of which the money was paid, tend to show such a part performance, as, connected with clear proof of the terms of the contract, and a long possession under it, would entitle the party to a specific execution of the agreement in equity.

The fact that the terms of the contract are not proved in this case, can confer no benefit on the plaintiff below, whose duty it was to prove what they were, in order to show his right to recover by reason of their violation or abandonment by W aters, or their insufficiency to impose a legal obligation on Donalson to abide by them. To hold otherwise, would be to enable a party to recover because of the absence of proof, the burthen of making which the law imposes on him.

We do not deem it proper to go into an investigation of the other points raised, as it is manifest from the record that the whole case is not before us, and an opinion upon a partial presentation of it might serve to mislead. The errors we have pointed out are decisive of the case in this court. Let the judgment be reversed, and the cause remanded.