Daniel v. Hodge
| Decision Date | 03 April 1939 |
| Docket Number | 33338 |
| Citation | 186 Miss. 170,187 So. 544 |
| Court | Mississippi Supreme Court |
| Parties | DANIEL v. HODGE |
Suggestion Of Error Overruled May 22, 1939.
APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.
Action by J. A. Hodge against Mrs. Lizzie M. Daniel to recover a sum of money as a commission for services rendered. From a judgment for plaintiff, defendant appeals. Affirmed.
Affirmed.
Stevens & Stevens and Barron C. Ricketts, both of Jackson, for appellant.
The court erred in overruling the general demurrer to the plaintiff's declaration.
The common law rule was that a contract made by an executor or administrator was the personal contract of the representative and not binding upon the estate. This common law rule was abolished in Mississippi by Article 119, Chapter 60, Revised Code of Mississippi of 1857, now appearing at Sections 1711 and 1712 of Mississippi Code 1930, authorizing an executor or administrator to sue or be sued upon any action or suit which shall accrue during the course of administration.
The declaration shows on its face that the defendant contracted as executrix with respect to a matter authorized by law Section 1708, Code 1930, providing for a lease of lands of a deceased person. The declaration did not charge any fraud deceit or concealment by the defendant respecting any matter of law or fact, and since the defendant contracted in her capacity as executrix, she is only liable to be sued as such.
McCarty v. Love, 145 Miss. 330, 110 So. 795; Merchants and Planters Packet Co. v. Streuby, 91 Miss. 211, 44 So. 791.
It is a well settled rule of law in this state that in construing a contract the entire language of the contract must be considered, and, if possible, given effect.
Citizens Lbr. Co. v. Netterville, 102 So. 178, 137 Miss. 310; Miss. Power & Light Co. v. A. E. Kusterer & Co., 125 So. 429, 156 Miss. 222.
It is also good law in Mississippi that in interpreting a contract the court should, if possible, construe it so that all provisions of the contract may be given effect and so that a legal and a possible construction may be placed upon it as opposed to an illegal and impossible construction.
Harris v. Townsend, 58 So. 529, 101 Miss. 590; Citizens Bank v. Frazier, 127 So. 716, 157 Miss. 298.
The court erred in overruling the defendant's motion to strike the plaintiff's counter-notice.
The plaintiff's counter-notice corresponds to a replication at common law, and it is well settled in Mississippi that a plaintiff may not, in his replication or subsequent pleadings, abandon the ground alleged in his declaration as the basis of his suit, and shift to a new ground for recovery, either as to matters of law or fact.
49 C. J. 342, par. 420; Porterfield v. Butler, 47 Miss. 167; Crim v. Drake, 98 So. 349; McGavock v. Whitfield, 45 Miss. 459.
The court erred in overruling the defendant's motion to require the plaintiff to make his declaration more specific and for a bill of particulars.
Sections 554 and 555, Code of 1930; Jones v. Millsaps, 71 Miss. 10, 14 So. 440; Pountaine v. Fletcher, 158 Miss. 720, 126 So. 471; Sherwin-Williams Co. v. Feld Brothers & Co., 139 Miss. 21, 103 So. 795; Knox v. Southern Paper Co., 143 Miss. 870, 108 So. 228.
The court erred in sustaining appellee's objection to the introduction in evidence of the record of proceedings in the case of J. A. Hodge, plaintiff v. A. F. Daniel, et al., defendants.
It was the defendant's position throughout the trial of this case that the contractual relations between the plaintiff and A. F. Daniel during the latter's lifetime, and the services rendered by the plaintiff to A. F. Daniel, were incompetent, irrelevant and immaterial to any issue presented on the trial of this case, because the plaintiff did not earn any commission which became due him during Daniel's lifetime, the suit was based upon Mrs. Daniel's letter written after her husband's death, and the only consideration which would support the agreement to pay the commission as provided in the letter was the plaintiff's services to be rendered in securing, negotiating and completing a lease with Sears, Roebuck and Company, which service the plaintiff was never able to perform.
The court erred in overruling the defendant's objections to the plaintiff's evidence of correspondence between him and Sears, Roebuck, services rendered by plaintiff to A. F. Daniel, and negotiations conducted by plaintiff for A. F. Daniel, all in the latter's lifetime.
12 Am. Jur., par. 93, page 586; Sykes v. Moore, 115 Miss. 508, 76, So. 538; Owen Tie Co. v. Bank of Woodland, 136 Miss. 114, 101 So. 292.
The court erred in granting the plaintiff a peremptory instruction, in refusing each and every instruction requested by the defendant, and in entering judgment against the defendant in favor of the plaintiff.
The most that can be found in the record as to the understanding of the parties is that the defendant understood that she would pay the plaintiff the commission agreed upon if he negotiated the lease, while the plaintiff contends that he was to get his commission for services rendered prior to the execution of the letter, and for services in procuring the lease after the execution of the letter even though he was unsuccessful in procuring a lease. There is to this extent a conflict between the testimony of the plaintiff and the defendant. The defendant contends that the evidence of the plaintiff that he was to be paid a commission for services both before and after the execution of the letter, although the unsuccessful agent, did not afford any right in the plaintiff to recover against the defendant, because the contract was purely unilateral, and the defendant had the right to revoke the same at any time, and the defendant did revoke the agency by procuring a lease through other means. The plaintiff and the learned trial judge below appeared to take the view that the defendant had no right to revoke the agency, that it was exclusive, and that the defendant's right to revoke it was in some way lost by a separate consideration adequate to support an agreement to pay the plaintiff the commission whether he secured the lease or not.
This result is in direct conflict with the decisions of the Mississippi Supreme Court, holding that an agreement to pay a real estate agent a commission for services, whether the agent rendered services in closing the sale or whether the principal did, is unilateral, lacks mutuality, and is revocable at will, subject to the right of the agent in a proper case to recover the value of services rendered upon the strength of the agreement.
Kolb v. Bennett Land Co., 74 Miss. 567, 21 So. 233; Jayne v. Drake, 41 So. 372; Taylor v. Barbour, 90 Miss. 888, 44 So. 988, 122 A. S. R. 328; Swain v. Pitts, 120 Miss. 578, 82 So. 305; Tonkel v. Moore, 162 Miss. 83, 137 So. 189.
The plaintiff appeared to contend throughout the trial that he was entitled to his commission because of the action of the defendant in negotiating through another agent. The declaration does not have any ellegation in it that after the plaintiff's services had been rendered, the defendant wrongfully negotiated with others in order to defeat his commission. The case of Swain v. Pitts, 120 Miss. 578, was brought on the theory that the owner had negotiated with the purchaser produced by the agent, in an effort to avoid the commission, but the court found otherwise. There is no evidence in this record that the defendant was interested in anything other than securing a lease for her son and daughter. If the plaintiff had been able to perform his agreement to negotiate the lease, the interested parties would have been able to save a material amount by way of commission, the difference between $ 1330.00 and $ 2500.00. The fact itself that the parties were willing to pay almost double the commission agreed upon with the plaintiff is an indication that they were not trying to avoid the payment of a reasonable commission.
Stanley v. Grimes, 158 Miss. 1, 128 So. 324; 2 A.L.R., Restatement of Agency, par. 448.
Stokes V. Robertson, Sr., Stokes V. Robertson, Jr., and Chas. S. Campbell, all of Jackson, for appellee.
Appellant's Point 1 presents the proposition that appellant did not become personally liable by signing the agreement of June 13, 1935, as executrix without authority of law or of the Chancery Court. Our answer to this proposition is: if an executrix or administratrix signs a contract or other promise to pay a debt or a probable claim against the estate of the deceased person without authority of law or of the Chancery Court, she thereby becomes personally liable therefor, and appellant's proposition is not supported by the. Mississippi cases which pass directly on this question.
Orgill Bros. v. Perry, 157 Miss. 543, 128 So. 755; Short v. Porter, 44 Miss. 533; Woods v. Ridley, 27 Miss. 119; Robinson v. Lane, 14 S. & M. 161; Yerger v. Foote, 48 Miss. 66; Clopton v. Gholson, 53 Miss. 466.
Appellant and not the court below was inconsistent and the court correctly overruled appellant's motion to strike appellee's counter-notice under the general issue after having sustained her motion to strike certain parts of the declaration relating to the services performed by appellee prior to the signing of the agreement of June 13, 1935, as constituting a sufficient consideration for the promise in said agreement to pay his commission because the agreement made out a prima facie case in favor of appellant and the consideration or lack of consideration therefor was an affirmative defense which appellee was not required to allege or prove, but which appellant was required to allege and did allege in her notice under the general issue and required...
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