Delta & Pine Land Co. v. Wallace

• Decision Date: 28 March 1904
• Court: Mississippi Supreme Court
• Parties: DELTA AND PINE LAND COMPANY v. JOHN P. WALLACE

36 So. 263

83 Miss. 656

DELTA AND PINE LAND COMPANY v. JOHN P. WALLACE

Supreme Court of Mississippi

March 28, 1904

FROM the circuit court of, first district, Hinds county. HON ROBERT POWELL, Judge.

Wallace appellee, was plaintiff in the court below; the Delta and Pine Land Company, appellant, was defendant there. From a judgment in plaintiff's favor, defendant appealed to the supreme court.

Wallace the plaintiff, claimed the right to recover commissions from the defendant, predicated of a verbal contract made with him by Watson, a superior officer of defendant, on December 3 1898, at Beauvoir. This contract was denied by Watson, and was the principal point litigated in the case. By the terms of the contract, as testified to by Wallace, he was to receive fifty cents per acre for the sale of 16,000 acres of land, situated in Quitman county, this state; the same to be sold at $ 6 per acre. He further testified that he procured one Carrier as a purchaser willing and able to buy all of said lands at said price. It appeared that Watson, the representative of defendant, Wallace, and Carrier, the purchaser, all met at Memphis, Tenn. Wallace claimed that he brought about and caused the meeting--at least, that Carrier was in Memphis, by his appointment, to meet him, and that Watson unexpectedly came into the hotel where they were, and that he called Watson, and introduced the two parties, and made known to each that the other was the party interested in the land, and the proposed sale and purchase. This was denied by defendant. Watson, defendant's representative, claimed that he and Carrier were both in Memphis on other business and that Wallace had nothing whatever to do with their being there. It was not disputed, however, that after they met in the hotel, Watson and Carrier went off together to a private room, and that Watson, for the defendant, sold Carrier something over 11,000 acres of the land at $ 5.50 per acre, although the deed was not made for a week or two afterwards. About three months thereafter the defendant, through Watson, executed a deed to Carrier for all the balance of the land. Wallace claimed that the delay in executing the deed for the balance of the land was a part of a scheme to defraud him of his commissions, and that all of the land was sold at the Memphis meeting. This was denied by defendant. The jury found for Wallace, awarding him the full sum demanded.

Judgment affirmed, reversed and cause remanded.

Frank Johnston and Green & Green, for appellant.

The verdict is contrary to the law and not warranted by the evidence. Appellee, in his declaration, averred that he was employed to sell 15,686.73 acres at $ 6.00 an acre, and that he did sell it, and he was entitled to fifty cents an acre commission by reason thereof. This contract was an entirety. Wallace, to earn his commissions, must sell the whole 15,686.73 acres; otherwise he was not entitled to any commissions.

There is no evidence, properly interpreted, tending to prove the cause of action alleged in the declaration. Those causes of action are in two counts; the first, a contract to pay commissions "an amount of money equal to fifty cents an acre for the whole numbers of acres of said lands," for a purchaser, able and willing to buy the whole number of acres, about 16,000, at a price satisfactory to Watson, and performance by Wallace; the second, a contract to pay commissions, an amount of money equal to fifty cents per acre for the whole number of acres of said land for a purchaser able and willing to purchase the whole number of acres at $ 6.00 per acre, and performance by Wallace.

Neither of these causes of action are proven. There is no pretense of proof of the first; a stagger at proof on the second is made. The whole transaction out of which the alleged contract arose occurred at Beauvoir, December 3, 1898, in a conversation between Watson and Wallace, and no one else was present.

The facts, apart from colorable confusion, are that in the spring and summer of 1898, Wallace had some correspondence with Watson, touching a sale of 31,000 acres of his land in a body. Finally, on August 10, 1898, Watson wrote Wallace that he would take $ 6.00 an acre cash or short time on deferred payments for 31,000 acres in Quitman county, and allow Wallace fifty cents an acre for selling it.

This offer was not accepted by Wallace, and this negotiation ended. Wallace had, in the summer and fall of 1898, a deal pending with Carrier to sell him 18,000 acres of Swan and Caldwell, etc., lands in a body near Watson's land, and in the summer in going over the Swan lands Carrier saw the Watson lands, in part, and he then asked the guide whose they were, and suggested to Wallace that he did not want Watson's lands himself, but he had a friend north, Mr. Cebois, to whom he thought he could sell them, and Wallace told Carrier that the land could be had, and that Watson's price was $ 6.00 net; and that Carrier said if he could sell them he would do so, and he and Wallace would divide all over $ 6.00 to be paid Watson. As late as September 29, 1898, Carrier refers in one of his letters to Wallace to these Watson lands under this proposed arrangement.

This proposed sale was not made to Cebois. In October and November, 1898, the sale of the 18,000 acres of Swan, etc., lands was still pending, and Carrier and his attorney, Clark, came south to see about the titles. The title to the Caldwell and Swan land was defective, and on December 3, 1898, Wallace went to Beauvoir to see Watson primarily to get a quit claim deed to clear up the Caldwell title. The Swan, Caldwell, etc., land was all that Carrier then wanted or had the money to buy.

There is a variance in the testimony of Watson and Wallace as to what transpired at Beauvoir December 3, 1898, as to the sale of Watson's lands. The subject was mentioned, and Watson says he told Wallace that Swan had these lands in charge, and he would have to see him in regard thereto, and that he would not do anything. Wallace says that Watson then told him that there was a party looking over the lands, and that if he did not take them in a few days or a week or ten days, that he could sell the 16,000 acres of land upon the same terms as was named in his letter of the last summer for 31,000 acres. This letter was dated August 10, 1898, and was that he would, take $ 6.00 cash or short time on deferred payments and allow fifty cents an acre for selling the whole 31,000 acres.

Thus, according to, Wallace's own evidence, there was no unconditional agreement, but there was a party looking, and if he did not take it in a week or ten days, then Wallace might have the right to sell the whole 16,000 acres at $ 6.00 cash or on short time for deferred payments for fifty cents an acre commissions. Wallace then left Beauvoir, and never saw Watson, or had any further communication with him until they met accidently in Memphis, December 10, 1898, and he did not know until that day that the other party referred to by Watson did not take the land. That Watson was right in his recollection of that conversation at Beauvoir is demonstrated by the subsequent events.

On the morning of December 10; just one week after the Beauvoir interview, Swan and Wallace were together on the train going to Memphis to meet Carrier to try to consummate the pending deal for the sale of the Swan, Caldwell, etc., lands, and while on the train they discussed the situation. Wallace was very anxious that the deal should be made, for he had the commission on the Caldwell land, some $ 4,000, dependent upon Carrier's buying that land; and Swan felt confident that he could in time perfect his title, and he was anxious to have Carrier establish his saw mill near his lands as a future resource. So both Swan and Wallace were discussing how to effect that end. Swan then suggested to Wallace that there was Watson's land that might be substituted for his land, so as to make up the 18,000 acres, and he says he then, and before, told Wallace that the price of Watson's land was $ 6.00 net. Thus, we have the confirmation of Watson's testimony that Swan had charge of the land. No conclusion was reached by Wallace and Swan as to the Swan, Caldwell, etc., land deal until they got to Memphis, where, by appointment, they were to meet Mr. Carrier to try to consummate that Swan deal. When they got to Memphis, at the Gayosa, they found that the deal could not then be consummated as to the Swan land. Just then, by accident, without procurement by any one, Mr. Watson appeared in the lobby of the Gayosa hotel, where Carrier, Swan, Wallace, and Williams were.

There is some variance in the evidence as to who introduced Carrier to Watson, but giving credence to all of the witnesses, except where in conflict, it appears that before Watson arrived the conclusion had been reached by Carrier that he would not then take the Swan land. and that the deal for the Swan land was off. Wallace and Swan had discussed on the train the suggestion of Swan about the Watson land and Watson's land was then mentioned to Carrier for the first time as a possible component of the 18,000 acres in lieu of the Swan land. Wallace did not then have any contract to sell the 11,000 acres, but, according to his own claim, one to sell the whole tract of 16,000 acres.

Wallace testified that just as Watson was in the act of taking the elevator, up to his room at the Gayosa, he told Watson "that this was the gentleman that we had been showing his land to. That he would like for him and Mr. Carrier to get together and agree upon the terms of payment as we had bargained the lands to Mr. Carrier for $ 6.00 an acre." That Watson said, "Mr. Carrier, get in and go up to my room with me, and we will talk over all these matters and I think ...