Barber v. Great Southern Development Co., 43008
| Citation | 163 So.2d 735,249 Miss. 662 |
| Decision Date | 11 May 1964 |
| Docket Number | No. 43008,43008 |
| Parties | W. R. BARBER v. GREAT SOUTHERN DEVELOPMENT COMPANY, Inc. |
| Court | Mississippi Supreme Court |
Morse & Morse, Gulfport, for appellant.
Holleman & Hurlbert, Gaston H. Hewes, Gulfport, for appellee.
W. R. Barber filed suit in the Circuit Court of Harrison County against Great Southern Development Company, Inc., to recover $50,000 alleged to be due him by the defendant as a real estate commission on the sale of the Great Southern Golf Course to Mrs. Dorothy D. Brown for $1,000,000. The jury returned a verdict for the defendant, judgment was entered accordingly, and the plaintiff appealed.
Appellee was the owner of a golf course on U. S. Highway 90 between Gulfport and Biloxi in Harrison County, and it was the desire of Joe Stewart, a resident of Buffalo, New York, and president and principal stockholder of appellee, to sell the golf course to Mrs. Brown, owner of the Broadwater Beach Resort Motel, which is located a short distance to the east of the Great Southern Golf Course. Charles Stewart was vice-president of appellee and manager of the Great Southern Golf Course. Several other members of the board of directors of appellee lived on the Gulf Coast. Charles Stewart and appellant were intimate friends, and played cards together a great deal and visited in each other's homes from time to time. Appellant had once been manager of the Broadwater Beach Motel operated by Mrs. Dorothy D. Brown.
It was the contention of appellant, and he introduced testimony tending to so prove, that in May 1961 Charles Stewart engaged appellant to sell to Mrs. Dorothy Brown the Great Southern Golf Course. Appellant contended that he contacted a nephew of Mrs. Brown from time to time thereafter and also talked to Mrs. Brown several times concerning the purchase of the golf course, and on one occasion when he was going to New Orleans with Mrs. Brown, he pointed out the golf course to her. Appellant contended that he was engaged to sell the golf course, and was the procuring cause of the sale, and became entitled to the usual commission of five percent on the sale price. The contract of sale was entered into between appellee and Mrs. Brown on September 1, 1962.
On the other hand, it was the contention of appellee, and it offered testimony tending to so prove, that the conversations had between Charles Stewart and appellant were casual and general in nature without any intention or purpose on the part of Stewart to engage appellant as a real estate agent, and that since appellant was engaged in another type of business than real estate, Charles Stewart did not know appellant was a real estate agent. Appellee's contention was that while Charles Stewart had several casual conversations with appellant concerning the sale of the golf course these conversations were merely those of one friend with another without any intention to engage appellant as a real estate agent to sell the golf course. It was further the contention of the appellee that Charles Stewart had no authority to engage a real estate agent to sell the golf course, and the testimony of Charles Stewart and his half-brother, Joe Stewart, who lived in Buffalo, New York, was that Charles Stewart had no such authority. Appellee also contended appellant was not the procuring cause of the sale.
It is not necessary to detail the evidence offered by the parties tending to establish their respective contentions. It is sufficient to say that all factual issues were questions for the jury.
Appellant's first assignment of error is that the trial court erred in granting four instructions to the appellee. The first instruction stated to the jury that there were three essential elements of appellant's case: (1) Plaintiff must have been the procuring cause of the sale; (2) There must have been a contract between appellant and appellee, and (3) Charles Stewart was authorized to act for appellee in engaging the services of appellant and his actions were those of appellee. The instruction then concluded with the statement that if the appellant failed to prove any of these three elements the jury should find for the appellee. The second instruction complained of also referred to the necessity of proving that Charles Stewart had authority from the corporation to engage a broker or agent to effect the sale of the golf course. The third instruction stated that if the jury believed from the evidence that the appellant's actions in connection with the sale of the golf course were without any authority from the appellee that the jury should find for defendant. The fourth instruction required that the jury find that plaintiff was 'actually engaged' or hired by the defendant corporation before it could find for pl...
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Warwick v. Matheney, 89-CA-0072
...704, 708 (Miss.1988); Mississippi State Highway Comm'n v. Robertson, 350 So.2d 1348, 1350 (Miss.1977); Barber v. Great Southern Dev. Co., 249 Miss. 662, 669, 163 So.2d 735, 737 (1964); 31A C.J.S. Evidence, Sec. 285 at VII. WEIGHT OF THE EVIDENCE There is no merit to the Warwicks' argument t......
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Lampkin Constr. Co. v. Sand Specialties & Aggregates, LLC
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