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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 complete bar to specific performance at the suit of the vendor. This for the manifest reason that the court will not make a contract for the parties, and require the vendee to accept a conveyance to a less interest than agreed. It is also a bar to full performance at the suit of the vendee. The court will not compel the vendor to purchase an outstanding title, nor cast a cloud on the title of strangers to the suit.

[3, 4] Whether this abatement be looked upon as an allowance for partial failure of consideration, or by way of compensation or damages for the loss resulting from nonperformance in full, it is the measure of relief in equity, to which the vendee is entitled because of partial failure of title, when he elects to claim partial performance. It is not questioned that, if full performance is had in equity, it is a bar to an action at law for damages for a breach of the contract. The specific performance of a contract leaves no breached contract. In some cases of doubt, concurrent actions for specific performance, and for damages at law, have been allowed to proceed without forcing an election; but final relief under both forms of action is not allowed. In either case the relief is full and exclusive. The equity jurisdiction in cases of specific performance is rest

The vendee may, however, waive full performance, elect to accept the title which the vendor is able to convey, and maintain a bill for specific performance accordingly. The court, having jurisdiction in such case, proceeds to do complete equity. If the vendee has paid the purchase money, it will decree compensation to him for the partial loss of title. If not, it will make a just abatement of the purchase money, and decree a conveyed on the inadequacy of the remedy at law, ance of the vendor's title upon payment of the balance.

These principles have been long recognized in Alabama and given application to contracts, wherein the vendor contracted to sell lands of greater area than he owned, or disabled himself to perform by a sale of a portion of the land, or where the land was incumbered with a dower interest. Bass v. Gilliland's Heirs, 5 Ala. 761; Springle's Heirs v. Shields, 17 Ala. 295; Bell v. Thompson, 34 Ala. 633; Bogan v. Daughdrill, 51 Ala. 312; Minge v. Green, 176 Ala. 343, 58 So. 381; Gachet v. Morton, 181 Ala. 179, 61 So. 817; Manning v. Carter, 192 Ala. 307, 68 So. 909; Id., 201 Ala. 218, 77 So. 744. See also 25 R. C. L., pp. 248, 249, §§ 52 and 53; 36 Cyc., p. 740, § 2.

In fixing a just abatement, the prevailing rule is to allow a proportionate part of the purchase money-the same measure of damages or compensation recoverable on breach of warranty of title, if the vendor had executed the contract. Thus in Springle's Heirs v. Shields, 17 Ala. 295, it was said:

"So, also, if the vendor have no title to a portion of the land sold, as a general rule the purchaser may have a specific performance of the contract, so far as it can be performed, and is entitled to compensation for that portion which he cannot get. 1 Ves. & Beam, 358; Wheatley v. Slade, 4 Sim. 126; Sug. on Vend. 301. And if the purchase money has not been paid, equity will relieve the purchaser from the payment of such part as shall be equivalent to the portion of the land for which no title can be made. Story's Eq. Jurisp. § 779, note 1; Graham v. Oliver, 3 Beav. 124-128; King v. Wilson, 6 Beav. 124. But in such cases, it is said that, if the purchaser should insist upon such a performance, the court will grant the relief only upon his compliance with equitable terms. 2 Story's Eq. Jurisp. 106, § 779, citing

and, where the legal remedy is found adequate, equity declines jurisdiction.

The case is not different when the vendee elects a partial performance. The entire transaction-the res is drawn within the jurisdiction of the court. The equities are determined as to both parties. The abatement of the purchase money involves as, of course, a determination of the extent to which title has failed, and the naming of the equitable terms upon which the vendee shall have specific performance.

It follows that the decree of specific performance in the case at bar was a complete adjudication of all the rights of the parties growing out of the transaction. This without the aid of the agreement in writing, filed and made a part of the decree.

The defendant was entitled to the affirmative charge on the evidence.

Reversed and remanded.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

On Rehearing.

BOULDIN, J. The urgent insistence of appellees that the opinion is founded in error leads to a review of some of the authorities relied upon by appellees. 25 R. C. L. p. 347:

"Equity may in proper cases grant specific performance of a contract, and in addition direct the payment of damages. For example, if the defendant has partly disabled himself from carrying out the contract, he may be decreed to perform specifically so much as he is still able to perform, and the plaintiff may recover damages for the residue. The practice existing in the chancery courts as giving compensation as a supplemental relief in a suit for specific performance of a contract for the sale of land is not itself an equitable function, dam

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

law."

This text deals with the plenary power of the court of equity in such cases. It merely announces that, while a court of law is the usual forum for recovery of damages, in this class of cases the equity court proceeds to award the damages for partial failure of title in the same suit. It does not touch upon the question of the right to proceed at law for damages after the court of equity has decreed the rights of the parties in the suit for specific performance.

The same authority declares:

"Election of Remedies.-Not infrequently a plaintiff has the privilege either of suing at law for breach of a contract or of bringing proceedings in equity for the specific performance of such contract. A person cannot, however, recover, in an action at law, the consideration paid on a contract, and at the same time proceed in a court of equity for a specific performance of the same contract." 25 R. C. L. p. 206.

sometimes called damages, it is more usually spoken of as an equitable compensation, for the value of that which the defendant does not convey."

Kares v. Covell, 180 Mass. 206, 62 N. E. 244, 91 Am. St. Rep. 271: Contract to convey a tract of lands free from all incumbrances. Thereafter a portion was taken for highway purposes. The court merely announces the rule that the vendee may, at his election, by suit for specific performance, take what the vendor can give, and hold him for damages for the rest, or the vendee may elect to rescind the contract, and recover back the money he has paid. He elected to rescind, and the court sustained a recovery of the purchase money paid.

Townsend v. Vanderwerker, 160 U. S. 171, 16 S. Ct. 258, 40 L. Ed. 383: Here there was a parol contract to purchase a half interest in real estate, the purchaser to contribute one-half of the cost of the property and of improvements thereon. The purchaser fully complied. No conveyance was made, and the vendor thereafter incumbered the entire property by mortgage. The bill was to declare and enforce a trust on the property for the value of one-half interest therein. ing remedies in equity, the court said:

Discuss

Bryant Co. v. Wilson, 151 N. C. 154, 65 S. E. 932, 134 Am. St. Rep. 982, involved an option to purchase standing timber. Held, specific performance could be granted as to such title as the vendor owned. The court further remarked that damages could have been 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 s0 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 main deals with the measure of damages in such cases. Does not involve the question here, further than to show that the vendee had an election to claim specific performance or damages.

in Burrow v. Scammel, 19 C. D. 175, when the defendant's title came to be investigated, it was found that she was possessed of only a moiety of the premises she had agreed to lease to the plaintiff, the other moiety being vested in her son, a minor. She was decreed to specifically 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. was no evidence that plaintiff had sustained any The court awarded specific performance, sub-effect that, where the defendant has only pardamages. The American cases are also to the ject to the incumbrances, and awarded dam- tially disabled himself from carrying out the ages to the value of the incumbrances. The

court said:

"The plaintiff seeks the aid of a court of equity to compel the specific performance of the defendant's contract to convey land. The defendant is unable to make a perfect title, and the court, at the plaintiff's election, will compel the conveyance of so much as the defendant can convey, and will award compensation in the nature of damages for the deficiency. * * * By making the election, the plaintiff undertakes to receive what the defendant never agreed to give namely, a partial conveyance of the estate; and equity will only allow this on the condition that the defendant shall not thereby be subjected to unreasonable injury. The plaintiff in effect elects to take satisfaction partly in land and partly in money, and if he is allowed to do this, he should only in equity be allowed to receive the fair money value of

contract, the plaintiff may be entitled to a specific performance, so far as it can be enforced, and may receive compensation in damages for the deficiency. 3 Pomeroy, Eq. Juris. §§ 1405, 1407; Bostwick v. Beach, 103 N. Y. 414."

The court then shows specific performance, so as to vest one-half interest in the purchaser, would leave his interest subject to mortgage; that the complete and adequate remedy to which he was entitled warranted the enforcement of the trust as claimed. We need not pursue the inquiry further.

One class of cases arises where the purchaser has paid the whole or the purchase money. On a bill for specific performance, the court of equity in such case awards a money judgment for the damages arising from partial failure of title, for breach of

(102 So.)

6(1)-Licensed

vendor of patent medicines held not guilty of "treating diseases" without license.

questioned that, in such case, the proportion- 3. Physicians and surgeons ate part of purchase money paid for the interest the purchaser failed to get would be 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 servthing of requiring the purchase money paid, than profit from sales, held not guilty of treatices 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 abate the purchase money in the same measure it would require repayment. If the unpaid balance is not sufficient compensatory damages to the vendee, a decree for the residue will be rendered.

The fault of appellees' argument is in failure to note that the abatement of the purchase money is the awarding of the damages due the vendee, within the meaning of the law. Whether a proportionate part of the purchase money should in all cases be the sole measure of damages, either on abatement or refund, is not before us. That issue arises when the abatement is asked, or recovery sought in the suit of specific performance. The cause of action cannot be split and recovery had in part in the equity suit, and in part in an action at law.

To some judicial minds, the thought or damages for breach of contract, and the thought of specific performance of the contract, are incompatible. These prefer to designate the award by way of refund or abatement in the equity suit as the compensation which equity awards the complainant, in full adjustment of the transaction upon his election to take specific performance. Whether called damages or compensation, we repeat it is the full measure of equitable relief upon an adjudication of all the rights and equities of both parties.

The application for rehearing is overruled.

HARPER v. STATE. (2 Div. 273.) (Court of Appeals of Alabama. Oct. 7, 1924. Rehearing Denied Oct. 28, 1924.)

1. Physicians and surgeons 6(9) — Indictment for treating human diseases by "prescribing medicine" without license held sufficient; "system of treatment."

1907, § 7564, as amended by Gen. Acts 1915, p. 661.

[Ed. Note.-For other definitions, see Words and Phrases, Second Series, Treatment.] Foster, J., dissenting.

Appeal from Circuit Court, Bibb County; S. F. Hobbs, Judge.

Jesse Harper was convicted of practicing medicine without license, and he appeals. Reversed and remanded.

Certiorari denied by Supreme Court in Ex parte State (In re Harper v. State) 102 So. 58.

Jerome T. Fuller, of Centerville, for ap pellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

SAMFORD, J. [1] The defendant was convicted under an indictment charging as follows:

"The grand jury of said county charge, that before the finding of this indictment Jesse Harper did treat, or offer to treat, diseases of human beings in this state by prescribing medicine, and kind and description of which is to the grand jury unknown, without having first obtained a certificate of qualification from the state board of medical examiners against the peace and dignity of the state of Alabama."

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:

"Any person who treats, or offers to treat diseases of human beings in this state by any system of treatment, whatsoever, without having obtained a certificate of qualification from the state board of medical examiners, shall be guilty of a misdemeanor," etc.

The indictment is not in the form prescribed 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 "sys-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 93-Description of offense more particularly than in statute does not invalidate indictment.

That indictment describes offense with greater particularity than statute creating it is no objection to its sufficiency.

man beings in this state "by any system of treatment whatsoever." The indictment charges that defendant treated or offered to treat diseases of human beings in this state "by prescribing medicine." Prescribing medicine 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 v. State, 134 Ala. 165, 32 So. 767, 58 L. R. A. 925; Fason v. State (Ala. App.) 98 So. 702.

[2] The indictment specifies the means of treatment alleged to have been employed by defendant in treating or offering to treat diseases of human beings. It is not a valid objection to the sufficiency of an indictment that it describes the offense alleged to have been committed with a greater degree of particularity than the statute creating the offense. The indictment was sufficient and the demurrer thereto was properly overruled. Gullatt v. State, 18 Ala. App. 21, 88 So. 371; Fason v. State (Ala. App.) 98 So. 702; Aaron v. State, 39 Ala. 75; Johnson v. State, 35 Ala. 363.

The indictment is not in the form prescribed by the Code, § 7161, No. 84. However, it does substantially follow the statute prescribing the offense sought to be charged. It employs the language of the statute in so far as such language is necessary. The statute provides that the offense shall consist of treating or offering to treat diseases of hu man beings in this state "by any system of treatment whatsoever." The indictment charges that defendant treated or offered to treat diseases of human beings in this state "by prescribing medicine." Prescribing medicine is a system of treatment and comes within the inhibition of the statute. Bragg v. State, 134 Ala. 165, 32 So. 767, 58 L. R. A. 925; Fason v. State (Ala. App.) 98 So. 702. 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 evidence that in selling the medicine defendant recommended it as being a remedy for the disease specified.

In our opinion this does not constitute a violation of the statute. General Acts 1915, p. 661; Nelson v. State, 97 Ala. 79, 12 So. 421; 30 Cyc. p. 1563 (VI).

The evidence for the state tended to show the following facts: The defendant was a vendor of patent medicines, and on several occasions various parties had come to him afflicted with diseases or physical troubles, such as rheumatism, indigestion, and gonorrhoa. The parties suffering from such dis

eases related to the defendant their trouble, and the defendant directed that they should take certain medicine out of his stock of pat

The rulings of the trial court were not in accord with this view, and for this error the judgment is reversed, and the cause is re-ent medicines which he was selling. He

manded.

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"The grand jury of said county charge, that before the finding of this indictment Jesse Harper did treat, or offer to treat, diseases of human beings in this state by prescribing medicine, and kind and description of which is to the grand jury unknown, without having first obtained a certificate of qualification from the state board of medical examiners against the peace and dignity of the state of Alabama."

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:

"Any person who treats, or offers to treat diseases of human beings in this state by any system of treatment, whatsoever, without having obtained a certificate of qualification from the state board of medical examiners, shall be

told them that such medicine would cure or remedy the disease complained of. The parties dealing with him purchased the medicine that he advised and followed his direction in taking it.

The evidence for the defendant tended to show that he did nothing more than sell patent medicines; that he did not direct which medicine should be used; and that he was duly licensed to sell patent medicine in Bibb county, Ala.

Insistence is made by appellant that the trial court erred in the refusal of the general charge for the defendant.

We are unable to agree with the conclusion reached by counsel for appellant in his very able discussion as to what constitutes prescribing medicine. To prescribe does not necessarily imply a "written prescription." It may be an oral one. What is necessary is for the party prescribing to indicate or recommend the medicine to be used. When he places himself in the position of a medi

(102 So.)

or names the medicine to be used or admin- | 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.

"Prescribe" means "to advise, appoint, or designate as a remedy for a disease; to give medical directions; designate the remedies to be used; as to prescribe for a patient in a fever." Century Dictionary. According to Webster's Dictionary, the term as applied to medicine means "to write or give medical directions; to indicate remedies; as to prescribe for a patient in a fever." The above definitions were adopted in the case of Burris v. State, 73 Ark. 453, 84 S. W. 723, 724, citing McCaughey v. State. 156 Ind. 41, 59 N. E. 169.

In medicine, to "prescribe" remedies is to "write or give medical directions; to indicate remedies." It is not necessary that such prescription be written. It may be given or indicated verbally. State v. Paul, 56 Neb. 369, 76 N. W. 861; State v. Lawson, 6 Pennewill (Del.) 395, 69 A. 1066, 1067.

From 3 Words and Phrases, Second Series, p. 1155, the following quotation is taken: "One who caters to the patronage of the sick, who ask relief from their ills, and assures them of her ability to help them, and supplies them with her alleged appropriate remedies, giving instruction for their application or use, would seem to come within the ordinary and usual signification attached to the words 'prescribing and furnishing mediState v. Bresee, 137 Iowa, 673, 678, 114 N. W. 45, 24 L. R. A. (N. S.) 103.

cine.'"

According to the evidence for the state, after having been informed by the party seeking his aid of the character of his disease, the defendant told him the medicine that he should take as a remedy for such disease. He did not merely sell the medicine asked for. He indicated to the patient the appropriate medicine for his particular disease. The conclusion is inescapable that the defendant "prescribed" the medicine.

The next question arising for consideration is: Would the fact that the medicine prescribed was patent medicine and the defendant was licensed to sell patent medicine absolve him from criminal responsibility? I think not. The defendant's license was to sell the medicine-nothing more. His license to sell such medicine did not authorize him to prescribe the same. If such were the law, it would mean that one obtaining a license to sell patent medicine might equip himself with a "cure for every ill," assert his competency to cure diseases of all kinds, pose as one trained in the art of healing, and after conferring with the patient and

cine decided upon, advise its administration to the diseased person, and thereby evade a law directed primarily for the purpose of preventing quacks from imposing upon the public by masquerading as men trained and learned in medical science. The license to sell patent medicines does not protect the vendor thereof from criminal responsibility for prescribing such medicine as a remedy for a particular disease.

The facts in Nelson's Case, 97 Ala. 79, 12 So 421, are readily distinguishable from the instant case. One finding another sick may administer medicine to him, in the absence of a physician, without charge for medicine or services and as a humane act, without violating any law.

In the instant case, although the evidence failed to show that defendant received compensation for his services merely, there may have been a consideration for his services, in the purchase of the medicine. It cannot be said as a matter of law that the service he rendered in prescribing the medicine was a gratuity, for it could have been inferred from the evidence that he received a valuable consideration and adequate compensation therefor in the sale of the medicine prescribed.

The evidence was sufficient to make the

guilt or innocence of defendant a question for the jury. The affirmative charge for defendant was properly refused.

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FOSTER, J. I respectfully dissent from the views expressed in the majority opinion. If the law is as there laid down, the "Indian doctor" may peddle patent medicines from house to house, and under the guise of a patent medicine vendor visit the sick in their homes, and upon inquiry as to the nature of their diseases prescribe for their ailments, whether they be tuberculosis, venereal diseases, malaria, typhoid fever, or what not, may impose upon the ignorant and the gullible, without fear of molestation by the officers of the law. The law of Alabama, as I understand it, and as given in my original dissenting opinion in this case (to which I now adhere), is intended to discountenance and prevent such practices. I am of the opinion that the application of the state for a rehearing should be granted, and that the judgment of reversal should be set aside and the judgment of the lower court affirmed.

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