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(102 So.) The controlling question here presented is: , Patton v. Rodgers, 1 Ves. & Beam, 351; ThomDoes the decree of specific performance as v. Dering, 1 Keene's Rep. 729, 743, 747." create a bar to this action by way of estoppel See, also, Minge v. Green, 176 Ala. 343, 58 or res adjudicata?

So. 381. [1,2] A partial failure of title is a com [3, 4] Whether this abatement be looked plete bar to specific performance at the suit | upon as an allowance for partial failure of of the vendor. This for the manifest reason consideration, or by way of compensation or that the court will not make a contract for damages for the loss resulting from nonperthe parties, and require the vendee to accept formance in full, it is the measure of relief a conveyance to a less interest than agreed. in equity, to which the vendee is entitled beIt is also a bar to full performance at the cause of partial failure of title, when he suit of the vendee. The court will not com- elects to claim partial performance. It is pel the vendor to purchase an outstanding not questioned that, if full performance is title, nor cast a cloud on the title of strangers had in equity, it is a bar to an action at law to the suit.

for damages for a breach of the contract. The vendee may, however, waive full per. The specific performance of a contract leaves formance, elect to accept the title which the no breached contract. In some

cases of vendor is able to convey, and maintain a bill doubt, concurrent actions for specific perfor specific performance accordingly. The formance, and for damages at law, have been court, having jurisdiction in such case, pro- allowed to proceed without forcing an elecceeds to do complete equity. If the vendee tion; but final relief under both forms of achas paid the purchase money, it will decree tion is not allowed. In either case the relief compensation to him for the partial loss of is full and exclusive. The equity jurisdictitle. If not, it will make a just abatement tion in cases of specific performance is restof the purchase money, and decree a convey ed on the inadequacy of the remedy at law, ance of the vendor's title upon payment of and, where the legal remedy is found adthe balance.

equate, equity declines jurisdiction. These principles have been long recognized The case is not different when the vendee in Alabama and given application to con- elects a partial performance. The entire tracts, wherein the vendor contracted to sell transaction—the res—is drawn within the lands of greater area than he owned, or dis- jurisdiction of the court. The equities are abled himself to perform by a sale of a por- i determined as to both parties. The abatetion of the land, or where the land was in- ment of the purchase money involves as, of cumbered with a dower interest. Bass v. course, a determination of the extent to Gilliland's Heirs, 5 Ala. 761; Springle's which title has failed, and the naming of the Heirs v. Shields, 17 Ala. 295; Bell v. Thomp- equitable terms upon which the vendee shall son, 34 Ala. 633; Bogan v. Daughdrill, 51 | bave specific performance. Ala. 312; Minge v. Green, 176 Ala. 38, 58

It follows that the decree of specific perSo. 381; Gachet v. Morton, 181 Ala. 179, 61 formance in the case at bar was a compl So. 817; Manning v. Carter, 192 Ala. 307, 68 adjudication of all the rights of the parties So. 909; Id., 201 Ala. 218, 77 So. 744. See growing out of the transaction. This withalso 25 R. C. L., pp. 248, 249, 88 52 and 53; out the aid of the agreement in writing, filed 36 Cyc., p. 740, $ 2.

and made a part of the decree. In fixing a just abatement, the prevailing

The defendant was entitled to the affirmrule is to allow a proportionate part of the ative charge on the evidence. purchase money—the same measure of dam

Reversed and remanded. ages or compensation recoverable on breach of warranty of title, if the vendor had execut- and THOMAS, JJ., concur.

ANDERSON, C. J., and SOMERVILLE ed the contract. Thus in Springle's Heirs v. Shields, 17 Ala. 295, it was said:

On Rehearing. “So, also, if the vendor have no title to a BOULDIN, J. The urgent insistence of portion of the land sold, as a general rule the appellees that the opinion is founded in error purchaser may have a specific performance of leads to a review of some of the authorities the contract, so far as it can be performed, relied upon by appellees. and is entitled to compensation for that portion which he cannot get. 1 Ves. & Beam, 358;

25 R. C. L. p. 347 : Wheatley v. Slade, 4 Sim. 126; Sug. on Vend. "Equity may in proper cases grant specific 301. And if the purchase money has not been performance of a contract, and in addition dipaid, equity will relieve the purchaser from the rect the payment of damages. For example, if payment of such part as shall be equivalent to the defendant has partly disabled himself from the portion of the land for which po title can carrying out the contract, he may be decreed be made. Story's Eg. Jurisp. $ 779, note 1; to perform specifically so much as he is still Graham v. Oliver, 3 Beav. 124–128; King v. able to perform, and the plaintiff may recover Wilson, 6 Beav. 124. But in such cases, it is damages for the residue. The practice existsaid that, if the purchaser should insist upon ing in the chancery courts as giving compensuch a performance, the court will grant the sation as a supplemental relief in a suit for relief only upon his compliance with equitable specific performance of a contract for the sale terms. 2 Story's Eq. Jurisp. 106, 8 779, citing of land is not itself an equitable function, dam

p. 206.

ages pertaining more properly to courts of to him. In the adjudged cases, though this is law."

sometimes called damages, it is more usually

spoken of as an equitable compensation, for the This text deals with the plenary power of value of that which the defendant does not the court of equity in such cases. It merely convey." announces that, while a court of law is the usual forum for recovery of damages, in this Kares v. Covell, 180 Mass. 206, 62 N. E. class of cases the equity court proceeds to 244, 91 Am. St. Rep. 271: Contract to convey award the damages for partial failure of title a tract of lands free from all incumbrances. in the same suit. It does not touch upon the Thereafter a portion was taken for highway question of the right to proceed at law for purposes. The court merely announces the damages after the court of equity has de- rule that the vendee may, at his election, by creed the rights of the parties in the suit for suit for specific performance, take what the specific performance.

vendor can give, and hold him for damages The same authority declares:

for the rest, or the vendee may elect to re"Election of Remedies.-Not infrequently a

scind the contract, and recover back the plaintiff has the privilege either of suing at money he has paid. He elected to rescind, law for breach of a contract or of bringing and the court sustained a recovery of the proceedings in equity for the specific perform- purchase money paid. ance of such contract. A person cannot, how Townsend v. Vanderwerker, 160 U. S. 171, ever, recover, in an action at law, the consid- 16 S. Ct. 258, 40 L. Ed. 383: Here there was eration paid on a contract, and at the same a parol contract to purchase a half interest time proceed in court of equity for a specific in real estate, the purchaser to contribute performance of the same contract.” 25 R. C. L. one-half of the cost of the property and of im

provements thereon. The purchaser fully Bryant Co. v. Wilson, 151 N. C. 154, 65 s. complied. No conveyance was made, and the E. 932, 134 Am. St. Rep. 982, involved an op- vendor thereafter incumbered the entire proption to purchase standing timber. Held, spe- erty by mortgage. The bill was to declare cific performance could be granted as to such and enforce a trust on the property for the title as the vendor owned. The court further value of one-half interest therein. Discussremarked that damages could have been ing remedies in equity, the court said: awarded in the same suit but for the fact “But, if the defendant has not wholly disthey were waived in progress of the cause. abled himself from carrying out the contract,

Foley v. McKeegan, 4 Iowa, 1, 66 Am. Dec. he may be decreed to perform specifically so 107: Suit for specific performance, with al. much as he is still able to perform, and plainternate claim for damages. Specific perform- tiff may recover damages for the residue. Thus ance was abandoned. The decision in the in Burrow v. Scammel

, 19 C. D. 175, when the

defendant's title came to be investigated, it main deals with the measure of damages in

was found that she was possessed of only a such cases. Does not involve the question moiety of the premises she had agreed to lease here, further than to show that the vendee to the plaintiff, the other moiety being vested had an election to claim specific performance in her son, a minor. She was decreed to speor damages.

cifically perform so much of the contract as she Woodbury v. Luddy, 14 Allen (Mass.) 1, was able to perform, with an abatement of 92 Am. Dec. 731: Bill in equity for specific half the rent, and an inquiry as to damages performance of contract for sale of land in- was refused only upon the ground that there cumbered by dower and homestead rights. damages. The American cases are also to the

was no evidence that plaintiff had sustained any The court awarded specific performance, sub- effect that, where the defendant has only parject to the incumbrances, and awarded dam- tially disabled himself from carrying out the ages to the value of the incumbrances. The contract, the plaintiff may be entitled to a specourt said:

cific performance, so far as it can be enforced, “The plaintiff seeks the aid of a court of and may receive compensation in damages for equity to compel the specific performance of the deficiency. 3 Pomeroy, Eq. Juris. $$ 1405, the defendant's contract to convey land. The 1407; Bostwick v. Beach, 103 N. Y. 414." defendant is unable to make a perfect title, and the court, at the plaintiff's election, will

The court then shows specific performance, compel the conveyance of so much as the de- so as to vest one-half interest in the purfendant can convey, and will award compensa- chaser, would leave his interest subject to tion in the nature of damages for the deficiency. mortgage; that the complete and adequate

* By making the election, the plaintiff remedy to which he was entitled warranted undertakes to receive what the defendant never the enforcement of the trust as claimed. We agreed to give namely, a partial conveyance of need not pursue the inquiry further. the estate; and equity will only allow this on the condition that the defendant shall not

One class of cases arises where the purthereby be subjected to unreasonable injury. chaser has paid the whole or the purchase The plaintiff in effect elects to take satisfac- money.

On a bill for specific performance, tion partly in land and partly in money, and if the court of equity in such case awards a he is allowed to do this, he should only in equity money judgment for the damages arising be allowed to receive the fair money value of from partial failure of title, for breach of the part of the estate which is not conveyed contract to convey the whole. It cannot be

was

(102 So.) questioned that, in such case, the proportion- , 3. Physicians and surgeons Om6(1)-Licensed ate part of purchase money paid for the in vendor of patent medicines held not guilty of terest the purchaser failed to get would be "treating diseases" without license. an element of the damages awarded.

Licensed vendor of patent medicines, which The other class is where the purchase mon- he recommended to buyers as remedies for ey or a portion thereof is still unpaid. In diseases specified by them, without holding such case, the court does not do the useless himself out as physician, charging for his sery. thing of requiring the purchase money paid, than profit from sales, held not guilty of treat

ices as such, or receiving compensation other and then determining the damages, and causing diseases without license, in violation of Code ing same to be returned. It proceeds to 1907, § 7564, as amended by Gen. Acts 1915, abate the purchase money in the same meas- p. 661. ure it would require repayment. If the un [Ed. Note.-For other definitions, see Words paid balance is not sufficient compensatory and Phrases, Second Series, Treatment.] damages to the vendee, a decree for the resi

Foster, J., dissenting. due will be rendered. The fault of appellees' argument is in fail

Appeal from Circuit Court, Bibb County; ure to note that the abatement of the pur. S. F. Hobbs, Judge. chase money is the awarding of the damages due the vendee, within the meaning of the

Jesse Harper was convicted of practicing law. Whether a proportionate part of the medicine without license, and he appeals. purchase money should in all cases be the Reversed and remanded. sole measure of damages, either on abate

Certiorari denied by Supreme Court in Ex ment or refund, is not before us. That is parte State (In re Harper v. State) 102 sue arises when the abatement is asked, or So. 58. recovery sought in the suit of specific per Jerome T. Fuller, of Centerville, for apformance. The cause of action cannot be pellant. split and recovery had in part in the equity Harwell G. Davis, Atty. Gen., and Lamar suit, and in part in an action at law.

Field, Asst. Atty. Gen., for the State. To some judicial minds, the thought of damages for breach of contract, and the

SAMFORD, J. [1] The defendant thought of specific performance of the con- convicted under an indictment charging as tract, are incompatible. These prefer to des

follows: ignate the award by way of refund or abatement in the equity suit as the compensation

"The grand jury of said county charge, that which equity awards the complainant, in full before the finding of this indictment Jesse Haradjustment of the transaction upon his elec- per did treat, or offer to treat, diseases of hu

man beings in this state by prescribing medition to take specific performance. Whether cine, and kind and description of which is to the called damages or compensation, we repeat it grand jury unknown, without having first obis the full measure of equitable relief upon tained a certificate of qualification from the an adjudication of all the rights and equities state board of medical examiners against the of both parties.

peace and dignity of the state of Alabama.” The application for rehearing is overruled.

Section 7564 of the Code of Alabama of 1907, as amended by an act of the Legislature, General Acts 1915, p. 661, provides as

follows: HARPER v. STATE. (2 Div. 273.)

"Any person who treats, or offers to treat

diseases of human beings in this state by any (Court of Appeals of Alabama. Oct. 7, 1924. system of treatment, whatsoever, without havRebearing Denied Oct. 28, 1924.) ing obtained a certificate of qualification from

the state board of medical examiners, shall be 1. Physicians and surgeons Ow6(9) – Indict- guilty of a misdemeanor,” etc. ment for treating human diseases by "prescribing medicine" without license held suffi. The indictment is not in the form precient; "system of treatment."

scribed by the Code, § 7161, No. 84. HowIndictment for treating or offering to treat ever, it does substantially follow the statute diseases of human beings "by prescribing medicine" without license held sufficient under Code prescribing the offense sought to be charged. 1907, $ 7564, as amended by Gen. Acts 1915, p. It employs the language of the statute in so 661, though not in form prescribed by section far as such language is necessary. The stat7161, No. 84, "prescribing medicine” being "syg- ute provides that the offense shall consist of tem of treatment" within statutory inhibition. treating or offering to treat diseases of hu2. Indictment and information Em93—Descrip. man beings in this state “by any system of tion of offense more particularly than in stat. treatment whatsoever.” The indictment ute does not invalidate indictment.

charges that defendant treated or offered to That indictment describes offense with treat diseases of human beings in this state greater particularity than statute creating it is “by prescribing medicine.” Prescribing medno objection to its sufficiency.

icine is a system of treatment and comes For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

within the inhibition of the statute. Bragg The indictment is not in the form prescribv. State, 134 Ala. 165, 32 So. 767, 58 L. R. ed by the Code, $ 7161, No. 84. However, it A. 925; Fason v. State (Ala. App.) 98 So. does substantially follow the statute pre702.

scribing the offense sought to be charged. It [2] The indictment specifies the means of employs the language of the statute in so treatment alleged to have been employed by far as such language is necessary. The statdefendant in treating or offering to treat ute provides that the offense shall consist of diseases of human beings. It is not a valid treating or offering to treat diseases of hu. objection to the sufficiency of an indictment man beings in this state “by any system of that it describes the offense alleged to have treatment whatsoever." The indictment been committed with a greater degree of charges that defendant treated or offered to particularity than the statute creating the treat diseases of human beings in this state offense. The indictment was sufficient and by prescribing medicine.” Prescribing medthe demurrer thereto was properly overruled. icine is a system of treatment and comes Gullatt v. State, 18 Ala. App. 21, 88 So. 371; within the inhibition of the statute. Bragg Fason v. State (Ala. App.) 98 So. 702; Aaron v. State, 134 Ala. 165, 32 So. 767, 58 L. R. A. V. State, 39 Ala. 75; Johnson v. State, 35 925; Fason v. State (Ala. App.) 98 So. 702. Ala. 363.

The indictment specifies the means of [3] The defendant was a licensed vendor treatment alleged to have been employed by of patent medicines. Certain parties who defendant in treating or offering to treat testified as witnesses for the state went to diseases of human beings. It is not a valid defendant and told him they suffered from objection to the sufficiency of an indictment certain diseases of the body, and he sold that it describes the offense alleged to have them of his wares, certain patent medicines, been committed with a greater degree of paron which there were labels recommending ticularity than the statute creating the ofsuch medicines for the ailment indicated and fense. The indictment was sufficient, and designating the dose to be taken. The de. the demurrer thereto was properly overrulfendant did not hold himself out as a physi-ed. Gullatt v. State, 18 Ala. App. 21, 88 So. cian, made no charge for services as such, 371; Fason v. State (Ala. App.) 98 So. 702; and received no compensation other than Aaron v. State, 39 Ala. 75; Johnson v. State, such profit as he derived from the sale 35 Ala. 363. of the patent medicines. It is also in evi The evidence for the state tended to show dence that in selling the medicine defendant the following facts: The defendant was a recommended it as being a remedy for the vendor of patent medicines, and on several disease specified.

occasions various parties had come to him In our opinion this does not constitute a afllicted with diseases or physical troubles, violation of the statute. General Acts 1915, such as rheumatism, indigestion, and gonorp. 661; Nelson v. State, 97 Ala. 79, 12 So. rhea. The parties suffering from such dis421 ; 30 Cyc. p. 1563 (VI).

eases related to the defendant their trouble, The rulings of the trial court were not in and the defendant directed that they should accord with this view, and for this error the take certain medicine out of his stock of patjudgment is reversed, and the cause is re-ent medicines which he was selling. He manded.

told them that such medicine would cure or Reversed and remanded.

remedy the disease complained of. The parFOSTER, J. (dissenting). The defendant cine that he advised and followed his direc

ties dealing with him purchased the mediwas convicted under an indictment charging tion in taking it. as follows:

The evidence for the defendant tended to “The grand jury of said county charge, that show that he did nothing more than sell patbefore the finding of this indictment Jesse ent medicines; that he did not direct which Harper did treat, or offer to treat, diseases of medicine should be used; and that he was human beings in this state by prescribing medicine, and kind and description of which is to duly licensed to sell patent medicine in Bibb the grand jury unknown, without having first county, Ala. obtained a certificate of qualification from the Insistence is made by appellant that the state board of medical examiners against the trial court erred in the refusal of the generpeace and dignity of the state of Alabama.”

al charge for the defendant.

We are unable to agree with the concluSection 7564 of the Code of Alabama of 1907, as amended by an act of the Legisla- sion reached by counsel for appellant in his ture, General Acts 1915, p. 661, provides as very able discussion as to what constitutes

prescribing medicine. To prescribe does not follows:

necessarily imply a "written prescription.” "Any person who treats, or offers to treat It may be an oral one. What is necessary diseases of human beings in this state by any is for the party prescribing to indicate or system of treatment, whatsoever, without having obtained a certificate of qualification from recommend the medicine to be used. When the state board of medical examiners, shall be he places himself in the position of a mediguilty of a misdemeanor," etc.

cal adviser, when he designates, indicates,

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(102 60.) or names the medicine to be used or admin-1 ascertaining his disease, determine the prop istered for a certain disease, he is prescrib- er remedy for such affliction, select the mediing such medicine for that disease.

cine decided upon, advise its administration "Prescribe" means "to advise, appoint, or to the diseased person, and thereby evade a designate as a remedy for a disease; to give law directed primarily for the purpose of medical directions; designate the remedies preventing quacks from imposing upon the to be used; as to prescribe for a patient in a public by masquerading as men trained and fever." Century Dictionary. According to learned in medical science. The license to Webster's Dictionary, the term as applied to sell patent medicines does not protect the medicine means "to write or give medical di- vendor thereof from criminal responsibility rections; to indicate remedies; as to pre- for prescribing such medicine as a remedy scribe for a patient in a fever." The above for a particular disease. definitions were adopted in the case of Bur The facts in Nelson's Case, 97 Ala. 79, 12 ris v. State, 73 Ark. 453, 84 S. W. 723, 724, SO 421, are readily distinguishable from the citing McCaughey v. State. 156 Ind. 41, 59 instant case. One finding another sick may N. E. 169.

administer medicine to him, in the absence In medicine, to "prescribe” remedies is to of a physician, without charge for medicine “write or give medical directions; to in- or services and as a humane act, without dicate remedies.” It is not necessary that violating any law. such prescription be written. It may be giv In the instant case, although the evidence. en or indicated verbally. State v. Paul, 56 failed to show that defendant received comNeb. 369, 76 N. W. 861; State v. Lawson, 6 pensation for his services merely, there may Pennewill (Del.) 395, 69 A. 1066, 1067. have been a consideration for his services, in

From 3 Words and Phrases, Second Series, the purchase of the medicine. It cannot be p. 1155, the following quotation is taken: said as a matter of law that the service he "One who caters to the patronage of the rendered in prescribing the medicine was a sick, who ask relief from their ills, and as- gratuity, for it could have been inferred from sures them of her ability to elp them, and the evidence that he received a valuable consupplies 'them with her alleged appropriate sideration and adequate compensation thereremedies, giving instruction for their applica- for in the sale of the medicine prescribed. tion or use, would seem to come within the

The evidence was sufficient to make the ordinary and usual signification attached to the words 'prescribing and furnishing medi- guilt or innocence of defendant a question cine.'” State v. Bresee, 137 Iowa, 673, 678, for the jury. The affirmative charge for de114 N. W. 45, 24 L. R. A. (N. S.) 103.

fendant was properly refused. According to the evidence for the state,

On Rehearing. after having been informed by the party seeking his aid of the character of his dis

PER CURIAM. · Rehearing denied, ease, the defendant told him the medicine that he should take as a remedy for such dis

FOSTER, J. I respectfully dissent from ease. He did not merely sell the wedicine the views expressed in the majority opinion. asked for. He indicated to the patient the If the law is as there laid down, the "Indian appropriate medicine for his particular dis- doctor” may peddle patent medicines from

The conclusion is inescapable that house to house, and under the guise of a patthe defendant "prescribed" the medicine.

ent medicine vendor visit the sick in their The next question arising for considera- homes, and upon inquiry as to the nature of tion is: Would the fact that the medicine their diseases prescribe for their ailments, prescribed was patent medicine and the de- whether they be tuberculosis, venereal disfendant was licensed to sell patent medicine eases, malaria, typhoid fever, or what not, absolve him from criminal responsibility? may impose upon the ignorant and the gulI think not. The defendant's license was to lible, without fear of molestation by the of sell the medicine-nothing more.

His li- ficers of the law. The law of Alabama, as cense to sell such medicine did not author- I understand it, and as given in my original ize him to prescribe the same. If such were dissenting opinion in this case (to which I the law, it would mean that one obtaining now adhere), is intended to discountenance a license to sell patent medicine might equip and prevent such practices. I am of the himself with a "cure for every ill," assert opinion that the application of the state for his competency to cure diseases of all kinds, a rehearing should be granted, and that the pose as one trained in the art of healing, judgment of reversal should be set aside and and after conferring with the patient and the judgment of the lower court affirmed.

ease.

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