Byrd v. Rees

Decision Date15 February 1965
Docket NumberNo. 43365,43365
Citation251 Miss. 876,171 So.2d 864
PartiesMrs. Dell BYRD, d. b. a. Credit Bureau of Hattiesburg, v. Samernie REES and Mrs. Margaret Rees, d. b. a. Credit Bureau of Hattiesburg Collection Service.
CourtMississippi Supreme Court

Dudley W. Conner, Edward J. Currie, Hattiesburg, Jesse M. Byrd, Leakesville, for appellant.

Howard L. Patterson, Jr., Hattiesburg, for appellees.

RODGERS, Justice:

This is an appeal from a final decree of the Chancery Court of Forrest County, Mississippi, permanently enjoining appellant from removing the Credit Bureau of Hattiesburg from its present location now occupied jointly with the Credit Bureau of Hattiesburg Collection Service. This action arose under the following circumstances: In 1926, the appellant, Mrs. Dell Byrd, established and owned a credit reporting business known as the Credit Bureau of Hattiesburg, Mississippi. Thereafter, in 1957, she established a business known as the Credit Bureau of Hattiesburg Collection Service. These two businesses operated in conjunction as a credit reporting and collection service but separate in management and departmental functions.

The appellee, Mrs. Margaret Rees, was the assistant manager and employee of appellant, and she desired to purchase both businesses. After considerable negotiations, the owner, Mrs. Dell Byrd, entered into a written contract with Margaret Rees and her husband Samernie Rees on October 1, 1960. It was agreed that Mrs. Byrd immediately sold to Mr. and Mrs. Rees the business known as the Credit Bureau of Hattiesburg Collection Service. The contract also provided for the future sale of the Credit Bureau of Hattiesburg upon the retirement or death of appellant. It was agreed that the purchasers would pay the purchase price for the Credit Bureau in installment payments after the purchase price had been completed for the Credit Bureau of Hattiesburg Collection Service. The contract provided that the purchase price for the Credit Bureau was $40,000, to be paid in installments of $100 per month. It was also agreed that Mrs. Byrd was to remain the owner and manager of the Credit Bureau until she retired or died, and she retained title to all physical properties of the business for the security for the payment of the purchase price.

The contract contained the following paragraphs:

'(f) The business of Credit Bureau of Hattiesburg Collection Service has heretofore been operated by Seller as though it were a part of or a division of her business carried on as Credit Bureau of Hattiesburg; and it is agreed between all parties hereto that Buyers shall so continue to operate the Credit Bureau of Hattiesburg Collection Service insofar as the general public and the customers and clients of said business are concerned. It is the intention of all parties hereto that the business of Credit Bureau of Hattiesburg Collection Service shall continue uninterrupted just as though there had been no change of ownership and that such operation by the Buyers shall conform in general to the plan of operation heretofore in effect. In the conduct of the business of Credit Bureau of Hattiesburg Collection Service Buyers shall continue to use and occupy the same space in the premises of Credit Bureau of Hattiesburg as heretofore, paying Seller $25.00 per month for the use of such space. Buyers agree that they will not move their said business of Credit Bureau of Hattiesburg Collection Service from the premises of Credit Bureau of Hattiesburg, unless Seller should hereafter grant to them written permission so to do.'

'(i) All operations of the Credit Bureau of Hattiesburg Collection Service in connection with the Credit Bureau of Hattiesburg reporting service and department shall continue as heretofore with all collection items being made known to and posted on the Credit Bureau of Hattiesburg files.'

'5. Seller agrees to cooperate with the Buyers and the Buyers agree to cooperate with the Seller in promoting the respective businesses of both; and Buyers especially agree that they will not make any change in the operation of the business of Credit Bureau of Hattiesburg Collection Service, unless such change should be agreed upon in advance with the Seller.

'6. This agreement sets forth the entire agreement and contract between the parties hereto with respect to the matters and things herein mentioned, and there are no verbal or oral understandings between them not herein set out.'

Appellees filed an original bill in the Chancery Court in which they alleged that they had completed the purchase of the Credit Bureau of Hattiesburg Collection Service, (hereinafter called Collection Service), and had paid $2,300 upon the purchase of the Credit Bureau of Hattiesburg, (hereinafter called Credit Bureau); that through various methods described therein, appellant was attempting to separate the two businesses and that she planned to and would move the Credit Bureau from the present location, unless she was restrained from so doing by the chancery court. A copy of the contract was attached to the original bill and it was alleged that the separation of the two businesses was 'both in spirit and letter a clear and unlawful breach of said contract * * *.'

Appellant answered the original bill, admitted the contract, and admitted that she intended to remove the Credit Bureau away from the present location and charged that the 'contract contained no provisions, terms, stipulations or conditions prohibiting the respondent from moving the Credit Bureau of Hattiesburg * * *.' to premises other than those now occupied by the Credit Bureau. The respondent offered to repay the appellees if they were dissatisfied with the purchase of the Credit Bureau. She alleges that the conduct of the petitioners made it impossible to remain in the premises now occupied because her health and property interests have been injuriously affected by remaining where the business is now located.

Thus the issues were clearly drawn in the trial court. Complainants claimed that appellant had admitted her intention to sever the two businesses in violation of the contract. Respondent denied that the contract prohibited a severance of the businesses, and charged that the acts of petitioners made it impossible for her to keep the Credit Bureau in the present location.

Over the objection of appellant, appellees were permitted to show that before and since the contract was made, the two businesses were interwoven to such an extent that the Collection Service was actually a working department of the Credit Bureau. This testimony detailed a filing system, telephone system and a working arrangement between appellant and appellee, Mrs. Margaret Rees. The respondent countered by showing that Mr. Samernie Rees cursed and used crude and unrefined language; that he became intoxicated and his conduct was so offensive, it prohibited her from continuing the operation of the Credit Bureau in the same location with appellees, and that the contract did not prohibit the removal of the Credit Bureau.

After hearing all of the testimony, the chancellor reached the conclusion that the two businesses were interwoven and that the contract showed the intent of the...

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    ...contractual in nature, and which are valid, complete, unambiguous and unaffected by accident, mistake or fraud.” Byrd v. Rees, 251 Miss. 876, 171 So.2d 864, 867 (Miss.1965). “Our concern is not nearly so much with what the parties may have intended, but with what they said, since the words ......
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    ...may be received to clear up an ambiguity by reason of which, such intention is not definitely expressed." (quoting Byrd v. Rees, 251 Miss. 876, 882, 171 So.2d 864, 867 (1965))). 20. Although Eastline also states that "[a]n oral modification may be made even where the contract provides that ......
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    ...the writing is incomplete, ambiguous or where the evidence is not offered to vary the terms of the written agreement. Byrd v. Rees, 251 Miss. 876, 171 So.2d 864 (1965); See also Corbin, Contracts, Vol. 3, Sec. 579 In the case sub judice the agreement between the Omelette Shoppe, Wendy's and......
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    • February 22, 2001
    ...agreement is not admissible, this bedrock rule "is subject to many exceptions and is said to be very flexible." Byrd v. Rees, 251 Miss. 876, 882, 171 So.2d 864, 867 (1965). "Parol evidence of the intention of the parties may be received to clear up an ambiguity by reason of which, such inte......
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