Affiliated Investments, Inc. v. Turner

• Decision Date: 05 October 1976
• Docket Number: No. 48832,48832
• Citation: 337 So.2d 1263
• Parties: AFFILIATED INVESTMENTS, INC. v. John L. TURNER et al., d/b/a John L. Turner & Associates.
• Court: Mississippi Supreme Court

Page 1263

337 So.2d 1263

AFFILIATED INVESTMENTS, INC. v. John L. TURNER et al., d/b/a John L. Turner & Associates.

No. 48832.

Supreme Court of Mississippi.

Oct. 5, 1976.

Wells, Gerald, Brand, Watters & Cox, Frank T. Moore, Jr., Clifford C. Thompson, Jackson, for appellant.

Butler, Snow, O'Mara, Stevens & Cannada, Thomas W. Prewitt, Rhesa H. Barksdale, Jackson, for appellees.

Before ROBERTSON, BROOM and LEE, Jj.

LEE, Justice, for the Court:

John L. Turner & Associates, a partnership, filed suit in the Circuit Court of Hinds County against Affiliated Investments, Inc. for breach of contract, and judgment was entered on a jury verdict in the amount of seventy-two thousand dollars ($72,000.00). Affiliated appeals from that judgment.

The sole question here is whether or not the alleged contract is unenforceable under the Statute of Frauds (Mississippi Code Annotated § 15-3-1(d) (1972)).

During the summer of 1971, James R. Coulter was employed by Affiliated effective January 1, 1972, at which time he became vice-president of real estate with the company. Affiliated was interested in building an office condominium, and Coulter was in charge of the project. In September, 1971, prior to his full-time employment with Affiliated, he met with John L. Turner, who was selected as the architect. A six percent (6%) architect fee was agreed upon, and it was understood that the standard architect's contract would be executed after January 1, 1972, when Coulter became officially a member of the company. Turner began preliminary work on the project, to be known as Executive Towers.

George S. Sanders, Jr., president of Affiliated, wrote the City of Jackson (from whom the lot was to be acquired) on January 24, 1972, that 'We are using local design talent' referring to John L. Turner & Associates. Also, he advised the City that, if there were any questions about the project, James R. Coulter, vice-president of real estate, should be contacted. Turner sent the contract to Coulter on January 11, 1972, after signing it himself, and he requested Coulter to secure the signature of Sanders (who had signed contracts with the architectural firm in other projects) on the contract and to return a copy for Turner's files. This contract was misplaced, and Coulter requested another one from Turner who executed the second contract and sent it to Coulter. After quite a delay, Coulter made changes in the document, initialed same and sent it back to Turner to initial the changes. Turner did so and returned it to Coulter on August 17, 1972. Thereupon, Coulter wrote a memorandum ¹ to Sanders, stating that the contract was ready to be executed, attached it to the contract, and forwarded them to Sanders. The contract was never signed by Sanders.

In the meantime, Turner had continued work on the plans and specifications, and about July, 1972, when they were fifty percent (50%) to sixty percent (60%) complete, he, Sanders and Coulter discussed them and the project favorably at a dinner meeting. On June 30, 1972, Turner sent Coulter a bill for soil tests in the amount of twenty-one hundred ten dollars and three cents ($2,110.03), and on July 7, 1972, a bill for engineering work in the sum of two hundred forty-two dollars and forty-two cents ($242.42), which were paid by Affiliated. A rendering (projectory or picture of the building as seen in perspective rather than elevation) for publicity of the building was displayed in the main lobby of Affiliated's office for eight or nine months, and it showed John L. Turner & Associates as architects. A brochure with the same picture and name of John L. Turner & Associates In late August, 1972, Affiliated decided that the project was not feasible, and terminated Coulter's employment. At that time, the plans and specifications were complete. Turner billed Affiliated for seventy-five percent (75%) of the fee, which amounted to seventy-two thousand dollars ($72,000.00) (The remaining twenty-five percent (25%) related to construction). Sanders said there was no contract, and Affiliated declined to pay the same.

was prepared by Sanders for circulation, and pictures of the building were published in the daily Clarion-Ledger and Jackson Daily News. Publication of the project was made in a professional weekly indicating that plans for the building were complete and John L. Turner & Associates were the architects. During the entire period Coulter worked in close contact with Turner and Kept Sanders informed.

At the request of appellant, the court granted Instruction No. 5 which told the jury that appellees were required to prove by a preponderance of the evidence that a contract was agreed upon whereby appellees would furnish architectural services to appellant, and Instruction No. 9 which defined the authority of Coulter as being actual, implied, or apparent, and told the jury that, if it found from the evidence Coulter lacked actual, implied, or apparent authority to enter the alleged contract with appellees for architectural services, then the verdict must be for appellant. Thus, by its verdict, the jury found that there was a contract and that Coulter had the authority to enter into and execute the contract. The absence of an agreement and the lack of authority on the part of Coulter are not disputed by appellant on this appeal.

We now consider the question of whether or not there is some memorandum or note of the contract in writing and signed by Affiliated which will remove it from the Statute of Frauds. The applicable part of the Statute of Frauds (Mississippi Code Annotated § 15-3-1 (1972)) is as follows:

'An action shall not be brought whereby to charge a defendant or other party:

(d) Upon any agreement which is not to be performed within fifteen months from the making thereof;

unless, in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or signed by some person by him or her thereunto lawfully authorized in writing.'

The minutes of the Board of Directors of Affiliated dated December 13, 1971, recited that Sanders presented to the Board for discussion plans and drawings of the condominium project and that he advised the Directors Jim Coulter would be in charge of the project; the undisputed evidence in the record shows that he was in charge of same. The minutes of said Board dated April 28, 1972, authorized the Executive Committee to take necessary steps in the execution of the architect's contract (John L. Turner & Associates). It is significant to note again that:

(1) Coulter's signature or method of authenticating a document was by his initials 'JRC' or 'JC'.

(2) Coulter made changes in the contract forwarded to him by Turner at five different places and authenticated the changes by those initials.

(3) Coulter sent that contract to Turner who likewise initialed it and returned it to Coulter who then approved it, wrote the memorandum (Appendix I), attached it to the contract, and sent it to Sanders.

(4) Coulter testified:

'Q. When was the contract under which these services were performed made?

A. It was finalized at the time I applied my initials as far as I was personally concerned.

Q. Did anyone tell you to initial that contract?

A. No. This was my way of advising my senior officer in the corporation that I had reviewed it and approved it and I was totally satisfied.'

In 37 C.J.S. Frauds, Statute of § 178, at 659-661 (1943), the law is generally stated as follows:

'In order that separate writings not physically connected may be considered together for the purpose of determining their sufficiency as a memorandum, it is generally held essential that their relation or connection with each other appear on their face, in other words, the writings must contain either an express reference to each other or internal evidence of their unity, relation, or connection, sufficient to make parol evidence of their connection unnecessary. Of course, an express or explicit reference from one document to another incorporates the latter in the former so as to allow the two to be considered together for the purpose of determining whether the requirements of the statute of frauds are satisfied; but, at least where the several writings are each signed by the party to be...