Barry v. Gulfport Building & Loan Ass'n

• Decision Date: 02 June 1930
• Docket Number: 28765
• Citation: 128 So. 569,158 Miss. 163
• Parties: BARRY et al. v. GULFPORT BUILDING & LOAN ASS'N
• Court: Mississippi Supreme Court

128 So. 569

158 Miss. 163

BARRY et al. v. GULFPORT BUILDING & LOAN ASS'N

No. 28765

Supreme Court of Mississippi

June 2, 1930

Division B

Suggestion of Error Overruled, November 3, 1930.

APPEAL from chancery court of Harrison county HON. D. M. RUSSELL Chancellor.

Suit by Dennis A. Barry and others against the Gulfport Building &amp Loan Association. From the judgment, plaintiffs appeal, and defendant cross-appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Buntin & McIntosh, of Gulfport, and Milling, Godchaux, Saal & Milling, of New Orleans, La., for appellants.

There is proof of the fact that the parties did intend to make a contract and were under the impression that they had succeeded in doing so. The court should do its utmost to avoid reaching a conclusion that the parties utterly failed to accomplish the purpose which they both admit they endeavored to accomplish. Every effort consistent with fairness, should be made to so construe the contract as to make it enforceable rather than unenforceable.

Boehmer Coal Co. v. Burton Coal Co., 2 F.2d 526, 528; 13 C. J. 539; American Sugar Refining Co. v. Newman Grocery Co., 284 F. 835; Hobbs v. McLean, 117 U.S. 567, 6 S.Ct. 870, 29 L.Ed. 940; Automatic Sprinkler Corp. v. Sherman, 294 F. 533; Limbaugh v. Boaz, 78 So. 421; McIllmoil v. Frawley Motor Co., 213 P. 971; Caddell v. Lufkin Land & Lumber Co., 234 S.W. 138; Hall v. Rankin, 193 P. 756; Echols v. Snider, 94 So. 189; Empire Natural Gas Co. v. Southwest Pipe Line Co., 25 F.2d 742; Waites v. Miller, 221 N.W. 171; Cochran v. Hurth, 163 N.E. 560.

The court will adopt that construction which is more probable and reasonable in preference to that which is improbable and unreasonable. The court will not suppose the parties intended, unless the contrary clearly appears, to make a contract which would put one contracting party at the mercy of the other, which is inequitable and lacking in mutuality.

Leizer v. Fluhart, 178 P. 817; Nichols v. Lorenz, 237 S.W. 633; Hoffman v. Aetna Insurance Company, 32 N.Y. 405; Schoellkopf v. Coatsworth, 59 N.E. 710; U. S. v. Skinner & Eddy Corp., 28 F.2d 373; Peoples v. New England Lbr. & Box Co., 142 A. 387; Magnolia Petroleum Co. v. Aiken, 289 S.W. 152; Berg v. Scully, 245 P. 119.

The natural, obvious meaning of the provisions of a contract should be preferred to any curious, hidden sense which nothing but the exigency of a hard case and the ingenuity of a trained and acute mind would discover.

Hawkeye Commercial Men's Association v. Christy, 294 F. 208.

Where by the course of conduct of one party to a contract, entitled to the performance of certain terms or condition thereof, the other party has been led to believe as a man of average intelligence, that such performance will not be required, until it has become too late to perform, or until to insist upon performance would work material injustice, the person who has so conducted himself is barred from asserting the right he had.

Bigelow on Estoppel (6 Ed.) 117; Kerr v. Armstrong, 110 A. 416; Anelly Hardware Co. v. Demis Bros. Bag Co., 94 So. 567; Lowell v. Wheeler's Estate, 112 A. 36; Pina Frams Co. v. Fowler, 258 P. 256; Malmquist v. Peterson, 183 N.W. 138.

Gardner, Brown & Backstrom, of Gulfport, for appellee.

A contract is not uncertain because it is silent as to the damages for a breach. Necessarily, it must follow that a contract is not uncertain because it is silent, in express terms, as to the amount of compensation to be paid.

13 C. J., page 268.

The meeting of the minds which is essential to the formation of a contract is not determined by the secret intentions of the parties but by their expressed intention, which may be wholly at variance with the former.

Hudson v. Columbian Transfer Co., 109 A. S. R. 680.

Under the contract reflected by the letters between appellant and appellee, appellee was to be sole judge of the amount of fee to be paid. That such contracts are valid cannot be questioned. These contracts may be unfortunate and ill-advised, but that does not impair or destroy their validity.

13 C. J., p. 675, par. 768; Jones v. Lanier, 73 So. 535; Zaleski v. Clark, 44 Conn. 218, 26 Am. R. 446; Krompier v. Spivek, 170 Ill.App. 621, 623; Ky. Independent L. Ins. Co. v. Williamson, 152 Ky. 818, 154 S.W. 409, 412; Brown v. Foster, 113 Mass. 136, 18 Am. R. 463; Haehnel v. Trostler, 54 Misc. 262, 104 N.Y.S. 533; Barry v. Rainey, 27 Misc. 772, 57 N.Y.S. 766; Dermody v. Flesher, 22 Misc. 348, 49 N.Y.S. 150; Schmand v. Jandorf, 44 L. R. A., p. 686; Harris v. Miller, 11 F. 118, 122; Hollingsworth v. Colthurst, 18 L. R. A. (N. S.) 741; Howe v. Kenyon, 30 P. 1058-1059; Haven v. Russell, 34 N.Y.S. 292; Gray v. Alabama Nat. Bank, 10 N.Y.S. 5 (aff. 14 N.Y.S. 155); Glenny v. Lacy, 1 N.Y.S. 513; Works v. Schnader, 155 Pa. 394, 26 A. 745, 35 Am. S. R. 893; Hartman v. Blackburn, 7 Pittsb. Leg. J. 140; R. I. Hanaford v. Stevens, 98 A. 209; Tennant v. Fawcett, 94 Tex. 111, 58 S.W. 824; McClure v. Briggs, 58 Vt. 82, 2 A. 583, 56 Am. R. 557; Carpenter v. Virginia Carolina Chemical Co., 98 Va. 177, 35 S.E. 358; Andrews v. Belfield, 2 C. B. (N. S.) 779, 89 R. C. L. 779, 140 Reprint 622; Schmand v. Jandorf, 175 Mich. 88, 142 N.W. 996, 44 L. R. A. (N. S.) 680, Ann. Cas. 1915A 746; Bowen v. Rucker, 183 S.W. 704; McCrimmon v. Murray, 43 Mont. 457, 117 P. 73; Gerisch v. Herold, 82 N.J.L. 605, 83 A. 892, 893, Ann. Cas. 1913D, 627; Gwynne v. Hitchner, 66 N.J.L. 97, 48 A. 571, 67 N.J.L. 654, 52 A. 997; Walker v. Edward Thompson Co., 37 A.D. 536, 56 N.Y.S. 326; Hart v. Hart, 22 Barb. 606; Johnson v. Bindseil, 15 Daly, 492, 8 N.Y.S. 485, 10 N.Y.S. 321; Clausen v. Vonnoh, 55 Misc. 220, 105 N.Y.S. 102.

In arriving at the intention of the parties, where the language of a contract is susceptible of more than one construction it should be construed in the light of the circumstances surrounding them at the time it is made, it being the duty of the court to place itself as nearly as may be in the situation of the parties at the time so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and the correct application of the language of the contract.

13 C. J. 542.

Appellant's representation that the fee would be straightened out to appellee's entire satisfaction is certainly of equal dignity with his representation that a fee of seven thousand five hundred dollars would be satisfactory to him. The same rule of law which estopped appellant to claim a fee in excess of seven thousand five hundred dollars should rightfully be applied, with at least equal force to his representation that the fee would be straightened out to appellee's entire satisfaction, and he is now estopped to insist on payment of any other fee except such fee as is to the entire satisfaction of appellee.

2 Pomeroy's Equity Jurisprudence, p. 164; Continental Bank v. Bank of the Commonwealth, 50 N.Y. 575, 581, 582; Dezell v. Odell, 3 Hill. 215, 38 Am. Dec. 628; Bidwell v. Pittsburg, 85 P. St. 412, 417, 27 Am. Rep. 622; Canal-Commercial Trust & Savings Bank v. Brewer, 143 Miss. 146, 108 So. 424, 47 A. L. R.; First National Bank of Nashville v. Bennett, 71 So. 169, 111 Miss. 26; Fields v. Killion, 128 Ala. 373, 29 So. 797; Schroeder v. Young, 161 U.S. 334, 16 S.Ct. 512, 40 L.Ed. 721; Cocke v. Kuykendall, 41 Miss. 65.

Argued orally by Eugene D. Saunders and J. D. Arrington, for appellant, and by Chas. Scott Brown, for appellee.

OPINION

Ethridge, P. J.

Dennis A. Barry of New Orleans, Louisiana, and a firm of lawyers of Washington, D. C., associated with him, filed a suit in the chancery court for the recovery of the fee for services rendered to the appellee in a tax proceeding before the department of the federal government dealing with income and other taxes. A contract alleged by the complainants consisted of certain correspondence passing between Dennis A. Barry and the Gulfport Building & Loan Association. These letters read as follows:

"June 23, 1927.

"Board of Directors, Gulfport Building & Loan Association, Gulfport Mississippi.

"Attention Mr. B. C. Bowen, Secretary.

"Dear Sirs: As suggested by Mr. Bowen, your secretary, I am writing to inform you how the tax case with the government can be handled and trust that the arrangements will meet with your approval.

"My recommendation to Mr. Bowen was that I be allowed to work with my representative in Washington, Mr. F. R. Gibbs with whom I have worked in all my tax cases and in whom I have every confidence as a lawyer and tax expert. Mr. Gibbs works on either the per diem basis or the contingent fee basis, his per diem rate charge is one hundred dollars per day, whereas his contingent fee basis of twenty-five per cent will take care of both his fee and mine. In either case you can rest assured that the same effort will be put forth to prove the Gulfport Building and Loan Association is an exempt corporation.

"In connection with this tax case the only other expense will be my traveling expenses to Washington and when necessary, to Gulfport. I feel confident that only two trips to Washington will be necessary and it will be my purpose to keep the total cost of this tax case as low as possible for the Gulfport Building and Loan Association.

"The auditing fee for getting together the data that I am now compiling should not exceed three hundred dollars. This expense is brought about due to the fact that the Association's books were never previously audited and if they had I could start the tax work from the audit reports. In other words, the Association is incurring an auditing expense at this late date that should have been previously spent had the books been audited year after year.

"On the supposition that the above meets with your approval...