American Brick Company v. Meador
| Decision Date | 09 November 1931 |
| Docket Number | 29572 |
| Citation | 161 Miss. 549,137 So. 488 |
| Court | Mississippi Supreme Court |
| Parties | AMERICAN BRICK COMPANY v. MEADOR |
1 EVIDENCE.
Jury must reconcile testimony if possible, aligning minor inaccuracies with general tenor of testimony.
2 BROKERS.
Declaration alleging that plaintiff was given exclusive agency to handle defendant's brick, and that defendant thereafter sold brick through plaintiff's efforts, warranted recovery of compensation for procurement of sale.
3. APPEAL AND ERROR.
Attempt on appeal to raise question of variance between declaration and evidence came too late, where defendant failed to recognize variance at trial.
APPEAL from circuit court of Forrest county HON. W. J. PACK, Judge.
Action by C. G. Meador against the American Brick Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Affirmed.
Hannah & Simrall, of Hattiesburg, for appellant.
Before there can be any contract "the minds of the contracting parties must meet as to all of its terms and conditions."
Yazoo & Mississippi Valley Railroad Company v. Jones, 114 Miss. 787, 75 So. 550, 554; Insurance Co. v. McIntosh, 86 Miss. 326, 38 So. 775; Brooks v. Brooks, 145 Miss. 845, 111 So. 376; Hollister v. Frellsen, 148 Miss. 568, 114 So. 385.
An exclusive agency to sell property is not equivalent to an exclusive right to sell, and where an exclusive agency only is granted, the owner retains the right to sell the property himself without being liable to the agent for a commission.
2 Words and Phrases (2d Series), page 372; Buster Brown Company v. Valley Dry Goods Company, 94 Miss. 856, 47 So. 549.
The law does not permit a litigant to allege one cause of action in his declaration and then sustain a judgment in his favor as being based on another cause of action, even though the proof should amply sustain the cause of action, not alleged in the declaration and even though the cause of action not charged in the declaration be sufficient to support a judgment in his favor.
Schautin et al. v. Board of Commissioners of St. Landry and St. Martin Gravity Drainage District No. 1, 160 La. 1036, 107 So. 897, 899; Chism v. Alcorn, 71 Miss. 506, 15 So. 73; Gibson v. Powell, 5 Smedes & Marshall, 712.
Morris & Wingo, of Hattiesburg, for appellee.
The declaration charged that the appellee was employed upon a commission basis to procure the use and and sale of said brick, "and that thereafter by and through the efforts of plaintiff the defendant sold to the contractors" at the two state institutions a specified number of brick at a fixed commission, aggregating the amount sued for.
The declaration is not based upon sale, but is based upon an employment of the appellee to make it possible to sell the products of the appellant.
The acceptance of the benefits of the appellee's effort and the payment to him upon the Sanatorium job was a ratification of the contract.
Belzoni Oil Co. v. Yazoo Co., 94 Miss. 58, 47 So. 468; 7 R. C. L. 665, para. 667.
Argued orally by Jas. Simrall, for appellant, and by F. M. Morris, for appellee.
When all the testimony is reconciled in so far as possible, which it is the duty of the jury to do, and when technical or minor inaccuracies or variances in the answers of witnesses are properly aligned along and as nearly with the general and substantial tenor and course of the entire testimony as is possible, and which is also the function and duty of the jury, there is found sufficient of reasonable evidence in this record to support the conclusion of the jury that the employment in this case was in or towards the procurement of sales, the sales themselves to be made direct by the seller, and that the compensation should justly be placed upon the quantum meruit.
Appellant's point is, however, that the declaration does not declare upon that theory; that the theory of the declaration is that the employment was to sell and not merely that it was for the procurements of sales. As pointed out in the recent case, Tonkel v. Moore et al. (Miss.), 162 Miss. 83, 137 So. 189, there is an important distinction between...
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