Chipman v. Lollar, EC 6951-S.

• Decision Date: 09 October 1969
• Docket Number: No. EC 6951-S.,EC 6951-S.
• Parties: H. W. CHIPMAN and James Chipman d/b/a Chipman Brothers, Plaintiffs, v. J. W. LOLLAR et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

304 F. Supp. 440

H. W. CHIPMAN and James Chipman d/b/a Chipman Brothers, Plaintiffs, v. J. W. LOLLAR et al., Defendants.

No. EC 6951-S.

United States District Court N. D. Mississippi, E. D.

October 9, 1969.

J. O. Sams, Jr., of Sams & Sams, Columbus, Miss., for plaintiffs.

Robert D. Patterson, of Patterson, King & Lee, Aberdeen, Miss., for International Minerals and Chemical Corp. and Robert Fulgham.

Jack F. Dunbar, of Sullivan, Dunbar & Smith, Clarksdale, Miss., for C. F. Vincent.

Dewitt Hicks, of Burgin, Gholson & Hicks, Columbus, Miss., for J. W. Lollar and James B. Lollar.

MEMORANDUM OPINION

ORMA R. SMITH, District Judge.

This case is before the Court on plaintiffs' Motion To Remand To State Court, and is considered on the record, briefs and oral argument of counsel.

Plaintiffs, H. W. Chipman and James Chipman, d/b/a Chipman Brothers, adult resident citizens of Leflore County, Mississippi, initiated this suit on July 12, 1969, in the Chancery Court of Lowndes County, Mississippi, against J. W. Lollar, an adult resident citizen of Lowndes County, Mississippi, James B. Lollar, an adult resident citizen of Quitman County, Mississippi, C. F. Vincent, an adult resident citizen of Coahoma County, Mississippi, Robert Fulgham, an adult resident citizen of Clay County, Mississippi, and International Minerals and Chemical Corporation, a corporation organized and existing under and by virtue of the laws of the State of New York, having its principal place of business in the State of Illinois, but authorized to do and doing business in the State of Mississippi (hereinafter referred to as IMC).

The action was timely and properly removed to this Court by IMC, who claimed the right to do so under the provisions of 28 U.S.C. §§ 1332 and 1441(c).¹

Chipman Brothers, on March 5, 1968, entered into four separate agricultural leases with defendants J. W. Lollar, James B. Lollar and C. F. Vincent, for approximately 3000 acres of land situated in Lowndes County, Mississippi. The leases covered the crop years 1968 and 1969.

Two of the leases entered into by Chipman Brothers were with J. W. Lollar; one was with J. W. Lollar and James B. Lollar, and the other was with J. W. Lollar and C. F. Vincent. The leases were similar for all practical purposes, but were separate and distinct documents. J. W. Lollar acted in his own behalf and as agent of James B. Lollar and C. F. Vincent in negotiating the leases with Chipman Brothers. It is clear from facts set forth in the complaint that while J. W. Lollar acted for the three landowners in the transaction, when the matter was finally determined the obligations of the three landowners were separate and distinct, except in cases where the land involved is jointly owned.

Chipman Brothers allege in the complaint that the transaction should be considered as one agreement and one transaction for the purpose of the litigation, although the leases upon which the suit is bottomed were separate and distinct documents and one bears no relation to the others.

In measuring the rights of parties to a written contract or conveyance, which, on its face, is unambiguous and expresses an agreement complete in all of its essential terms, the writing will control. Fuqua v. Mills, 1954, 221 Miss. 436, 73 So.2d 113; Miss., 73 So.2d 928. Any discussions or negotiations leading up to clear and unambiguous contracting documents are merged therein and extinguished thereby, Continental Gin Company v. Freeman, U.S.D.C.N.D.Miss., Greenville Division, 1964, 237 F.Supp. 240, affirmed 381 F.2d 459, rehearing denied, 384 F.2d 365.

The leases involved in the case sub judice are clear, complete and unambiguous, and cannot be united, one with the other, and considered as one transaction, as Chipman Brothers contend, to form the base for litigation involved in the case sub judice.

The lease between J. W. Lollar and C. F. Vincent and Chipman Brothers contained the following provision:

"(5) It is further understood and agreed between the parties that the LESSEES will burn, repile and clean the land for cultivation to the LESSORS' satisfaction. After the crops on said land have been planted, the LESSEE will present a bill to the LESSORS for the expense of said burning, repiling and clearing, which said bill will itemize and specify in detail the actual expenses incurred by the LESSEES in so preparing the land. Upon receipt of said bill and upon satisfaction by the LESSORS that said land has been satisfactorily burned, repiled and cleared, said LESSORS will reimburse the LESSEES for the expenses incurred."

Chipman Brothers contend that defendant Vincent was required by the terms of his lease to clear certain lands included in the lease so that they might farm the land in 1969; that Vincent failed to clear approximately 260 acres of the land; and that Vincent's breach of the contract caused them to suffer a loss of $13,000.00 in gross revenue. Chipman Brothers demanded judgment against Vincent for this sum. The Court is unable to find any provision in the lease concerning the clearing of land, except the one hereinbefore set forth. While the quoted paragraph of the lease provides that Vincent and J. W. Lollar, lessors in the lease, will pay the costs of cleaning and clearing the land, it expressly fixes the duty to perform the work upon lessee. It is difficult to understand Chipman Brothers' position on this issue, but, regardless of this, such claim or right of action as exists in favor of Chipman Brothers exists against J. W. Lollar and Vincent, and not against any other defendant. The demand for judgment against Vincent alone refutes any contention to the contrary.

One of the leases of J. W. Lollar, the lease of J. W. Lollar and James B. Lollar, contain the provision with reference to cleaning and clearing land which is incorporated in the Vincent lease. The Court's discussion of the Vincent lease, supra, applies with equal force to these leases. The complaint alleges that J. W. Lollar is indebted to Chipman Brothers pursuant to the provisions of the leases, in the sum of $13,687.50, for labor and material used in cleaning and clearing land, including rental not yet paid of $5,000.00. The demand for judgment on this cause of action is for the aforesaid sum against defendants, J. W. Lollar and James B. Lollar.

If Chipman Brothers have a claim or right of action against these defendants it is based on the leases executed between the parties and such a claim or right of action is separate and apart from any claim or right of action which Chipman Brothers may have against IMC.

Chipman Brothers allege that they made known to J. W. Lollar, when negotiating the lease agreements, that they would need financing for their crops, if they should lease the land; that a secured bank loan of $50,000.00 was negotiated by Lollar for Chipman Brothers, but that this amount of money was not sufficient to include the fertilizer needed by Chipman Brothers; that J. W. Lollar recommended defendant IMC as a reliable source from which fertilization of the land for the crop year might be obtained; and that Lollar made such statements as "he had a fertilizer company", for them "not to worry", "he would see that the fertilizer was placed on the land", "that they knew the land", "that they would properly apply the fertilizer"; and "that they were the only company to do business with".

The parties inserted a provision in each of the leases, as follows:

"`(6) It is further understood and agreed between the parties hereto that all soil on the leased lands will be tested each crop year by Roy Fulgham or some other competent and qualified employee of International Minerals and Chemical Corporation of Tupelo, Mississippi. It is further understood and agreed that the fertilizer recommendations of International Minerals and Chemical Corporation as aforementioned will be strictly followed and complied with by LESSEES with the exception that the LESSEES may use their own discretion as to the necessity and amount of nitrate fertilizer, if any, to be used on said lands.'"

Chipman Brothers further allege that Lollar sent defendant Robert Fulgham, local agent of IMC, to see them about the fertilizer, and after some negotiation with Fulgham they made an oral contract with IMC through Fulgham to apply fertilizer to the land during the crop year 1969. It is not necessary for an understanding of this opinion that the details of this alleged agreement be stated herein. Sufficient it is to say that Chipman Brothers charge that IMC defaulted in the performance of this agreement, to their damage in the sum of $70,000.00. Demand for a judgment against IMC and their agent Fulgham in the said sum is made in the complaint.

While Chipman Brothers allege that the contract with IMC was negligently breached by its agent Fulgham, and that their claim or cause of action against IMC is one sounding in tort rather than contract, for which the agent may be held jointly liable with the master, it is clear to the Court that the facts well-pleaded, as distinguished from the conclusions reached by the pleader, state a cause of action sounding in contract rather than in tort.

As above indicated the complaint seeks a judgment against C. F. Vincent for $13,000.00, one against Robert Fulgham and IMC for $70,000.00; one against J. W. Lollar and James B. Lollar for $13,687.50, plus prepaid rent not reimbursed; and a decree of cancellation of the lease contracts.

IMC has removed this action from the State Court to this Court on the theory that the complaint does not state a cause of action against its agent Fulgham, and that the litigation between Chipman Brothers and IMC involves a separate and independent claim or cause of action, which would be removable if sued upon alone; thus, the action is subject to removal pursuant to 28 U.S. C. § 1441(c).

On the issue of Fulgham's personal liability, making him a proper or necessary party to the suit, Chipman Brothers argue that...