Everman v. Herndon

• Decision Date: 09 April 1894
• Court: Mississippi Supreme Court
• Parties: W. A. EVERMAN ET AL. v. THOMAS HERNDON ET AL

15 So. 135

71 Miss. 823

W. A. EVERMAN ET AL. v. THOMAS HERNDON ET AL

Supreme Court of Mississippi

April 9, 1894

FROM the chancery court of the first district of Coahoma county HON. W. R. TRIGG, Chancellor.

Bill for specific performance, or for damages for breach of an alleged contract to sell land. Decree for defendants.

The opinion states the facts.

Affirmed.

W. A Percy, for appellants.

It is not alleged by complainant in his pleadings that the trade was to be for cash, or in what manner the $ 5 per acre was to be paid. Complainants, therefore, offered to perform their contract by paying all cash for so much as the vendor was able to convey. The mistake of defendants' counsel is in supposing that complainants aver that the terms of their contract with Herndon are contained in the paper executed by Cross Bros. on June 15, 1889. What they aver is that, on that day, they did enter into a contract to purchase the lands of Herndon at the price of $ 5 per acre, and they afterwards, by their amendments, set out a voluminous correspondence, the paper of June 15 among them, and aver that the terms of the contract can be gathered from all the papers on file.

This correspondence shows that Herndon recognized the agency of Cross Bros. On the former appeal, this court held that all the papers under the allegations of the bill could be looked to to ascertain the terms of the contract. So far as the contract of sale signed by Cross Bros. is concerned, it did conform to the contract which they were authorized to accept and, when this contract is construed with the other papers in the case, the full terms of the trade are shown, and they agree with complainants' version of the same.

D. A. Scott, for appellees.

The contract made by Cross Bros. is plainly one for $ 5 per acre cash. The construction sought for by appellants is strained. In no sense can it be considered as a contract for the sum of $ 4,000, to be paid in one and two years, at eight per cent. interest. The idea of interest is not to be found in it. The mere tender by appellants of the whole sum at $ 5 per acre would be to comply with the terms of that contract. Nothing in the correspondence gave Cross Bros. authority to make a sale upon the terms evidenced by the written contract. The only power they had was to find a purchaser and have Herndon close the trade. Unless it is clear that the agent was authorized to make a contract and sign it, there is no such power. Schultz v. Griffin, 121 N.Y. 294, s.c. 18 Am. St. Rep., 825; 19 Am. St. Rep., 514; 6 Am. Rep., 620.

OPINION

COOPER, J.

On a former appeal in this cause the question involved was as to the sufficiency of the description of the subject-matter of the contract to relieve it of objection under the statute of frauds, and we then held that it was permissible to look to all the writings signed by Herndon in the negotiation leading to the sale, and that, by so doing, it sufficiently appeared what land was intended to be sold. Everman v. Herndon, 11 So. 652.

The question involved in this appeal is whether the defendant, Herndon, is bound by the contract of sale entered into by Cross Bros., who professed to be authorized by and to act for him, by which they agreed to sell to appellants, Everman and Blanton, the lands now sued for. When the cause was remanded on the former appeal, the parties were at issue upon the original and amended bills, and proceeded to take depositions preparatory to final hearing thereon. During the taking of the deposition of the defendant, Herndon, a fuller disclosure of certain parts of the correspondence between this defendant and Cross Bros. led the complainants to exhibit a second amended bill, to which the defendant demurred, and his demurrer was sustained. The cause was then set for final hearing upon the original and first amended bill and exhibits, answers and proof, and on such hearing the original and amended bills were dismissed. The errors assigned bring into review the decree sustaining the demurrer to the second amended bill and the decree made on the final hearing. Under our practice in chancery, exhibits filed with a bill are a part of the bill, and are considered on demurrer as if copied in the bill. Code 1892, § 528.

By the second amended bill the entire correspondence between Cross Bros. and the defendant, Herndon, is set out in ipsissimis verbis either in that bill or in the exhibits to the original bill referred to, and made a part of the second amended bill.

It is evident on the whole record that the complainants do not rely upon the creation of an agency in Cross Bros. for the defendant, Herndon, except, by this correspondence, none of which is denied by the defendant. On this branch of the case the same question was presented on the hearing of the demurrer and on final hearing, and, since the cause is finally disposed of by us on the question common to both, we shall deal with the two decrees as one.

It is contended by counsel for appellants that, in the correspondence between the defendant, Herndon, and the firm of Cross Bros., authority was conferred upon said firm, as agents for this defendant, to sell the lands in controversy at the price of $ 5 per acre cash, and that the communications between these parties on the fifth, sixth, tenth and thirteenth of June (which is hereinafter specifically set out) was not in derrogation of the agency before that time existing; that, if it be true that the memorandum of sale executed by Cross Bros. on June 14 (which is also hereinafter set out) would not be a valid execution of the agency created by the telegrams and letters of June 5, 6, 10 and 13, it was authorized by the agency before that time conferred on them.

Counsel for appellants do not point to the writing antedating the telegram of June 6, by which the agency of Cross Bros. to sell the land was created, nor have we been able to discover any such authority from the correspondence. It does appear that Cross Bros. desired to be authorized either to sell the land for the defendant, Herndon, or to secure the right to commissions on a sale to be made, if they could find a purchaser for the land; but there is nothing in the correspondence antedating June 6 from which it could be deduced that Herndon had appointed them as his agents, or that they so understood. The only agency we can discover in the correspondence is that created by the letter and telegram from Herndon of date June 6, which were in reply to the communication from Cross Bros. of date June 5. On June 4, Hemdon, in reply to a letter from Cross Bros., asking him to fix the price of the land, and also asking at what price he would sell the timber thereon, wrote as follows:

"CLARKSVILLE, TENN., June 4, 1889.

"Mr. John L. Cross:

"DEAR SIR--Your favor to hand and contents noted, I would sell my land in Mississippi for $ 5 per acre cash. Can give perfect title. Would ask about the same for timber as for land and all. Mr. Ham has my plot. I sent it to you, and, after I got it back, I sent it to Ham. Write him for it."

On June 5, Cross Bros. wrote to Herndon as follows;

"MEMPHIS, TENN., June 5, 1889.

"T. Herndon, Esq., Clarksville, Tenn:

"DEAR SIR--In reply to your letter, will say I think I can sell your place for four thousand, (800) acres; one-half cash, balance in one and two years, with 8 per cent. from date. Please inform me if I must close at that price and terms. Wire at my expense. Resp. CROSS BROS."

On June 6, Herndon sent this telegram to Cross Bros.:

"CLARKSVILLE, TENN., June 6, 1889.

"Cross Bros., Real Estate Agents:

"Accept the four thousand dollar proposition. If necessary, will come Friday night. T. HERNDON."

On the same day Herndon wrote to Cross Bros. as follows:

"CLARKSVILLE, TENN., June 6, 1889.

"Messrs. Cross Bros., Memphis, Tenn.:

"GENTS--Your favor to hand and noted. There are 830 acres in roy tract, and I propose to put it at $ 5 per acre. My deeds are all on record in Coahoma county, Miss.

"Yours, etc., T. HERNDON."

In reply to the telegram from Herndon, Cross Bros. on the same day telegraphed to Herndon as follows:

"MEMPHIS, June 6, 1889.

"T. Herndon, Clarksville, Tenn.:

"Proposition accepted. Particulars by mail.

"CROSS BROS."

Several other letters passed between Herndon and Cross Bros. after June 6 and before June 15, but they are unimportant. On June 15 the following written contract was...