Alkahest Lyceum System v. Featherstone

• Decision Date: 19 February 1917
• Docket Number: 18833
• Citation: 74 So. 151,113 Miss. 226
• Court: Mississippi Supreme Court
• Parties: ALKAHEST LYCEUM SYSTEM v. FEATHERSTONE ET AL

74 So. 151

113 Miss. 226

ALKAHEST LYCEUM SYSTEM v. FEATHERSTONE ET AL

No. 18833

Supreme Court of Mississippi

February 19, 1917

Division B

APPEAL from the circuit court of Tate county, HON. E. D. DINKINS Judge.

Suit by the Alkahest Lyceum System against Mrs. H. C. Featherstone and others. From a judgment for defendants, plaintiff appeals.

Appellant is a corporation organized for the purpose of providing the public musical, literary, and other forms of entertainment. It has a list of attractions which it offers during each season. Appellees are officers of an unincorporated society in Senatobia, Miss., called the Civic League. Appellant was plaintiff in the court below, and brought this action to recover three hundred and twenty-five dollars as a total consideration which the Civic League of Senatobia agreed to pay for certain entertainments to be furnished during the seasons of 1913 and 1914. The agreement is in writing, and extracts from this document read as follows:

"This agreement made this day and year written, between the Alkahest Lyceum System, of Atlanta, Ga., party of the first part and Civic League, party of the second part, witnesseth That the party of the first part hereby agrees to furnish party of the second part with the following lyceum attractions, to appear in Senatobia, Miss., during the season of 1913, for and in consideration of the sum of three hundred and twenty-five ($ 325) dollars:

Attraction.

Price.

Approximate Time.

Apollo Con. Co.

$ 100.

Mrs. Chilton

50.

Ross Crane

50.

Orphean Male

No date to be

Quartette

75.

given on Thanksgiving

Elias Day

50.

or in two weeks of

1 sub. L. & T.

1.

each other.

"Subject to president's acceptance."

It appears from the testimony that the Civic League is simply an unincorporated local organization "for the improvement and betterment of the town of Senatobia, for beautifying and for civic pride." Appellee, Mrs. Featherstone, was president of this organization, while Mrs. Rush, the other appellee, was chairman of the finance committee at the time the contract was executed. The circumstances under which this agreement was signed appear to be about as follows: Mr. Bell the agent of appellant, requested a conference with the officers and members of the Civic League with the view of entering into a contract to furnish them a series of entertainments. It so happened that on the day Mr. Bell was in Senatobia for this purpose there was to be a funeral which all the leading members of the League desired to attend, the mother of one of the members having died. The funeral had been arranged for four o'clock p. m. and, at the solicitation of Mr. Bell, Mrs. Featherstone agreed to a conference with him at her home at three o'clock preceding this funeral. Mrs. Featherstone invited to this hurried conference a number of the members and there was only a short discussion of the contract and a rather hurried execution thereof. When the question of signing the contract came up for discussion, some of the women inquired, "Who shall sign it?" and Mr. Bell thereupon stated that it did not make any difference, "just so some of you sign it." Thereupon the contract was duly signed by Mr. Bell acting for his company, and by Mrs. Featherstone and Mrs. Rush, as officers of and on behalf of the Civic League. It appears that nothing was said about the personal liability of either one of the officers or members, and it further appears that these good ladies did not read over the contract before they signed it. There is, however, no controversy as to the material terms or provisions of the contract. After the contract had been executed, Mrs. Featherstone attempted to make sale of tickets for the first attraction, and, failing to arouse the necessary interest, she first requested a reduction of the total consideration from three hundred and twenty-five dollars to two hundred dollars. The company declined to reduce the price, and thereupon the officers of the Civic League attempted to wire a cancellation of the entire contract. These communications were had by wire and by letter. Appellant company declined to accept the cancellation, but in due course provided each of the attractions called for by the contract, except one listed at fifty dollars. The various persons whose talent was engaged by appellant appeared at Senatobia at the time duly scheduled for each, and offered their professional services, but the Civic League declined to make any arrangements for the reception of this talent, declined to furnish an auditorium, or to do anything in the way of giving any of the performances.

The cause was submitted to the jury under instructions for both parties. The verdict was returned in favor of the defendants, and from the judgment entered in pursuance of this verdict, appellant appeals. The court refused the following instructions asked for by the plaintiff:

"The court instructs the jury that if they believe from the evidence that plaintiff furnished the several attractions as provided in the contract, and the defendants have not paid any part of the price agreed upon, then the jury will find for the plaintiff the amount stipulated in the contract, except fifty dollars for Elias Day, and in addition thereto such an attorney's fee as the evidence shows plaintiff was required to pay, provided the evidence further shows such fee was reasonable."

"The court instructs the jury to find for the plaintiff as to all the attractions at the price named in the contract sued on, except as to Elias Day, with interest at six per cent. per annum from March 8, 1913, and in addition thereto the sum of fifty dollars as attorney's fee."

The Court also modified the following instructions which, on account of the modification, plaintiff declined to use:

"The court further instructs the jury that the addition of the abbreviations Pres. and Sec. & Treas. does not necessarily relieve the signers of the contract from individual liability," The word "necessarily" having been added by the court.

"The court further instructs the jury that under the contract in evidence (if the minds of the parties thereto were agreed as to its contents) the defendants were not authorized to cancel the contract without the consent of plaintiff and the jury will not consider the defendants' action in attempting to cancel the same." The words added by the court are shown in parentheses.

The court granted to appellees instruction No. 1 in the following language:

"The court instructs the jury that there can be no contract between two parties on any matter unless their minds meet or come together on the matters to be included in the same; and if the jury believes from the evidence in this case that the defendants never understood that they were to be individually bound, and that plaintiff so understood, but that the Civic League alone, as an organization, was to be bound, and that they so understood the nature of their understanding by reason of the declaration and conduct of the agent of the plaintiff, then the jury should find for the defendant."

The same thought is expressed in other instructions given appellees.

Cause reversed and remanded.

L. F. Rainwater, for appellant.

The witnesses all say the contract was made with the Civic League, and the contract itself so states, but the evidence further shows that the agent of appellant insisted that it should be signed by some of the incumbers. The Civic League being a voluntary unincorporated society had no legal existence. It was a legal non-entity, and incapable of making a contract, or of being sued.

It is argued that the defendants did not expect to be held personally liable and did not make any contract as...