Grace v. Floyd

• Decision Date: 28 April 1913
• Docket Number: 15,883
• Citation: 104 Miss. 613,61 So. 694
• Court: Mississippi Supreme Court
• Parties: M. B. GRACE v. S. A. FLOYD

61 So. 694

104 Miss. 613

M. B. GRACE v. S. A. FLOYD

No. 15,883

Supreme Court of Mississippi

April 28, 1913

APPEAL from the circuit court of Carroll county.HON. G. H. MCLEAN Judge.

Motion by S. A. Floyd to compelM. B. Grace, an attorney at law, to pay over money collected by him, alleged to belong to petitioner.From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

M. B Grace, for appellant.

Did the court below, the circuit court, commit a prejudicial error by sustaining the motion of appellee to exclude all the evidence of appellant and grant the appellee a peremptory instruction to the jury to find for the appellee?Did the court err in excluding evidence of appellant on motion of appellee relative to a subsequent agreement by and between appellant and appellee relative to appellant paying or indemnifying appellee against any loss for supreme court cost in case the suit was reversed?Granting there was such an agreement and promise as related by appellant, although the appellee denies same, who were the parties to this contract, promise and agreement?What kind of an agreement was it, and what was the consideration for same?In fact, was there any consideration to support the agreement?If the judgment of the lower court in the case of Floyd v. Southern Railway Co. in Mississippisupra, and the appellee compelled to pay the supreme court cost, entailing a loss to appellee in the paying of same could the appellee successfully, after the payment of same, have maintained a suit in the courts against appellant, on this alleged promise, contract and agreement, to collect from appellant the amount he was forced to pay under execution, as supreme court cost on account of the reversal of the aforesaid cause?

This was an original contract, promise and agreement between appellant and appellee, supported by a consideration which was a sufficient consideration, upon the happening of the contingency, to wit, the reversal of the judgment of the lower court by the supreme court.The appellant agreeing and promising to pay the appellee, or reimburse him for any damages he may sustain, such as the payment of supreme court cost, if the case is reversed, the appellant was to have all the interest and statutory damages which would be incident to the affirmance of the judgment, and the appellant was to pay to the appellee one-half of the original judgment of the lower court, to wit, one thousand six hundred and seventy-five dollars.This contract and agreement is contingent upon a condition precedent.If the judgment is reversed, no one realizes on it, and the appellant is bound to pay to appellee the amount he is compelled to pay as supreme court cost, thus making him whole.Of course, the execution from the supreme court would have been against appellee and not appellant, and appellee would have been bound to have paid the cost, but he had his simple remedy against appellant, and had appellant refused to reimburse him, he could have maintained a suit at law against him and collected every cent of it.

No argument is necessary to convince this court or anyone else, except the court below and counsel for appellee, in the event the judgment of the lower court had been reversed and the cost paid by appellee, this could have become a debt due and owing, under the terms of the agreement, to appellee.This was not a contract with the clerk of the supreme court by appellant, in the event the supreme court reversed the judgment of the lower court, appellant would pay the clerk of the Supreme Court the amount of the cost in the case; such a contract would have been within the statute of frauds and void as to enforcement by the clerk of the supreme court.It would be an agreement to pay to the clerk of the supreme court a debt due by the appellee to him (clerk of the supreme court) and for which appellant was not liable in any way.But this was a contract and agreement with the party who would have been primarily liable, and, in consideration of certain things, he would pay to, or reimburse the party primarily liable for any cost he may have to pay upon the happening of the contingency.For illustration, A promises B in consideration of a consideration moving from B to A that he, A, will pay C a debt which B owes to C; if C is present at the time of the agreement and hears the agreement made between A and B and then A, then and there, promises C that he, A, will pay to C the debt which B owes to C, the contract between A and C would be void, if not in writing, because within the statute; but, if A did not pay the debt as he had contracted to do, B could sue A in an action at law for his breach of contract and failure to pay the said debt, and for any special damages he could show as a consequence of the breach or failure.The contract, promise or agreement, as far as A and B are concerned, would be an original agreement and contract supported by a sufficient consideration, therefore enforceable.This is the exact agreement between appellant and appellee.If one is good, both should be good.

In the case of Boogher Dry Goods Co. v. Kelly,84 Miss. 236, 36 So. 258, it was held by the court, where the debtor conveys his stock of goods in consideration of a promise of the transferee to pay certain of the debts which the transferror owed to various parties, the promise was not within the statute of frauds as for one to answer for the debts of another.This is a well-settled principle of law, and the logic of the proposition should be sufficient to sustain our contention without other authorities.WearBoogher v. Kelly,84 Miss. 236;Ware v. Allen,64 Miss. 547;Lee v. Newman,55 Miss. 365;Sweatman v. Parker,49 Miss. 19;Putney v. Farnham, 9 Am. Rep. 459.

S.E. Turner and Hughston & McEachern, for appellee.

We submit that when appellant filed his plea in abatement and the appellee replied thereto, making up an issue, and the same was tried by a court and determined in favor of the appellee, that the judgment should have been for the appellee.SeeKendrick v. Watkins,54 Miss. 495.

The court in its discretion permitted appellant to plead further, whereupon he filed a plea of general issue.A jury was impanneled and testimony introduced by the appellee and the appellant.The testimony of the appellant, being that he had a subsequent agreement with the appellee, some two or three months before the case was affirmed, in which he agreed to indemnify the appellee against any cost he might have to pay in the supreme court and that the appellee agreed that he should have the statutory damages and interest in the event of an affirmance of the case.

At the conclusion of this testimony, which was the only defense to the motion introduced by the appellant, the appellee made a motion to strike out all that part of appellant's evidence with reference to the subsequent contract or second agreement, because said agreement is affirmative matter not pleaded, and because said agreement is without consideration, and could not have been enforced against Mr. Grace, should the cause have been reversed, which motion was sustained by the court.We submit that the action of the court in sustaining the motion was correct.Seesection 744, Mississippi Code, 1906, and Railroad Co. v. Grant,86 Miss. 565.It is true that appellant then offered to amend his plea of the general issue by filing and annexing to said plea a notice of affirmative matter, showing the second contract between appellee and appellant, which motion the court overruled and assigned the following:

"The court holds that a plea in abatement was first filled to the motion in this case, and the court wanted the Supreme court to have the full benefit of all the evidence, as well as this court, and overruled the motion for judgment, and gave the defendant who is an attorney, an opportunity to file his plea and he filed the general issue.

"After the introduction of the testimony in the casehe asked to be allowed to amend the general issue by filing a notice, and the court, feeling that this matter ought to be ended, denied this on the question raised as to the exclusion of the testimony, as it is held in the case of Emma May v. Louis Williams,61 Miss. 125, that this promise is within the statute of frauds, and the testimony is excluded on that ground."

It is true that under our practice the court has full power to allow amendments to be made at any time before verdict so as to bring the merits of a controversy between the parties fairly to trial; but we submit the court was correct in not permitting appellant to file this notice and that his holding was correct.

We submit that the action of the court was correct, because the second contract or agreement, which appellant alleges was made between him and the appellee, is without consideration and could not be enforced.We submit further that such a contract is champertous and should not be recognized in the court.See3 Am. and Eng. Ency. of Law (1 Ed.), p. 79, 6 Cyc. 853, par.C.

We submit further that counsel realizes this when in his statement of facts and in his argument he asserts that his original agreement did not cover the fee for his service in the supreme court, and that this second agreement should be made to cover that.There is no evidence in the record that the first agreement did not cover his fees in all the courts and there is no evidence that the second agreement was to cover a fee in the supreme court.The appellant himself testifies that it was an agreement to save the appellee harmless of any cost in the supreme court in the event the case should be reversed.There is no evidence of any fee to be paid counsel for appellee, yet appellant says, in his...