Biggers v. Fox, 54404
| Citation | 456 So.2d 761 |
| Decision Date | 26 September 1984 |
| Docket Number | No. 54404,54404 |
| Parties | Marc A. BIGGERS v. John H. FOX, III. |
| Court | United States State Supreme Court of Mississippi |
Heber A. Ladner, Jr., Thomas Y. Page, Upshaw & Ladner, Jackson, for appellant.
James W. Newman, III, Jackson, for appellee.
Before BOWLING, HAWKINS and SULLIVAN, JJ.
Attorney Marc Biggers appeals from a summary judgment in favor of John H. Fox, III in the Chancery Court of the First Judicial District of Hinds County.
We find there are unresolved questions of law and of fact, and that the chancellor was premature in rendering summary judgment. Accordingly, we reverse.
In 1979 Biggers was an attorney employed in the law firm of Fox. They reduced to writing their agreement on the division of a fee payable unto Fox under a contract with a client.
WHEREAS, that in order to secure the benefits to which Marc A. Biggers is entitled under his employment relationship with John H. Fox, III, in the provision of said services therein described the parties hereto deem it advisable and prudent to execute this agreement setting forth the entitlement of said Marc A. Biggers from John H. Fox, III from fees received under said fee payment agreement.
NOW THEREFORE, IT IS MUTUALLY COVENANTED AND AGREED THAT John H. Fox, III, his heirs or assigns will pay to Marc A. Biggers, his heirs or assigns, the sum of $8,000.00 on or before the 15th day of April, in each of the years beginning April 15, 1980 and continuing thereafter until paid. It is specifically agreed and understood that said payments are to be made from the $24,000.00 due and owing from Seth P. Ball and Barbara McDonald Ball, their heirs and assigns under the fee payment agreement (Exhibit "A"), as and when paid; and that in the event said payments for some reason are not forthcoming from Seth P. Ball and Barbara McDonald Ball, their heirs and assigns, the obligation of Fox for the above payments will be cancelled or deferred, contingent upon receipt of the benefits due and owing to Fox under said Fee Payment Agreement (Exhibit "A").
WITNESS OUR SIGNATURES, this the 5th day of March, 1979.
s/John H. Fox
JOHN H. FOX, III
s/Marc A. Biggers
Thereafter, a partnership was formed between the two of them, which was later dissolved. On March 24, 1981, Biggers wrote the following agreement:
FOR AND IN CONSIDERATION OF THE SUM OF $5,000.00, I, Marc A. Biggers, do hereby transfer and assign all my right, title and interest in the assets of the partnership of FOX & BIGGERS, to John H. Fox, III. Payment of said sum shall be made on monthly basis as current accounts payable owing to said partnership received.
s/Marc Biggers 3/24/81
Fox paid Biggers the $5,000 in four monthly installments. No payment was made on the 1979 agreement after 1981.
On June 22, 1982, Biggers filed suit against Fox for specific performance and an injunction to compel him to pay the sums due under the 1979 agreement.
On July 27, 1981, Fox answered, and also filed a motion for summary judgment. Attached to his motion were the above agreements, copies of four cancelled checks for $1,250 each, and the following affidavit:
AFFIDAVIT
STATE OF MISSISSIPPI
Personally appeared before me, the undersigned authority in and for the jurisdiction aforesaid, the within named JOHN H. FOX, III, who by me being first duly sworn stated on oath that the allegations of fact recited in the foregoing Answer are true and correct as therein stated and that having, at the specific instance and request of Marc A. Biggers to pay to the said Marc A. Biggers the sum of $5,000.00 in consideration for the sale, transfer and assignment of all of the assets of the...
To continue reading
Request your trial
-
Communications Workers of America, Local 10517 v. Gann, 56488
...621 (Miss.1986); Busching v. Griffin, 465 So.2d 1037, 1042 (Miss.1985); Dennis v. Searle, 457 So.2d 941, 945 (Miss.1984); Biggers v. Fox, 456 So.2d 761 (Miss.1984). Those same rules require reversal where the trial judge has summarily resolved the ambiguity, explicitly or as here implicitly......
-
Shaw v. Burchfield, 55061
...view of the practice of resolving contract ambiguities via summary judgment. Dennis v. Searle, 457 So.2d 941 (Miss.1984); Biggers v. Fox, 456 So.2d 761 (Miss.1984). On the other hand, if the terms of a contract are clear, the question is one of law even though the parties may disagree regar......
-
Magnolia Const. Co., Inc. v. Mississippi Gulf South Engineers Inc., 57324
... ... South East Collections Agency, Inc., 459 So.2d 783 (Miss.1984); Biggers v. Fox, 456 So.2d 761 (Miss.1984); Dethlefs v. Beau Maison Development Corporation, 458 So.2d 714 ... ...
-
Phillips By and Through Phillips v. Hull
...v. Credit Center, Inc., 444 So.2d 358 (Miss.1983). See also Bourn v. Tomlinson Interests, Inc., 456 So.2d 747 (Miss.1984); Biggers v. Fox, 456 So.2d 761 (Miss.1984); Dennis v. Searle, 457 So.2d 941 In the instant case, the plaintiffs' complaint rests on two causes of action: (A) That the do......