Hill v. Capps, 42805

• Decision Date: 27 January 1964
• Docket Number: No. 42805,42805
• Citation: 160 So.2d 186,248 Miss. 601
• Parties: Edward B. HILL et al. v. Charles W. CAPPS, Sr., et al.
• Court: Mississippi Supreme Court

Page 186

160 So.2d 186

248 Miss. 601

Edward B. HILL et al. v. Charles W. CAPPS, Sr., et al.

No. 42805.

Supreme Court of Mississippi.

Jan. 27, 1964.

Satterfield, Shell, Williams & Buford, Jackson, for appellants.

Jacobs, Griffith & Hatcher, Cleveland, for appellees.

LEE, Presiding Justice.

The declaration by Charles W. Capps, Sr. and Charles W. Capps, Jr., a partnership, d. b. a. Capps Insurance and Real Estate, sued Edward B. Hill and others to recover a broker's commission in the sum of $11,450, being 5% of the sale price, under an alleged contract to that effect.

The pleadings raised, and the evidence was directed to, a determination of whether or not an alleged oral contract was entered into by and between the plaintiffs and the defendants, by and through Edward B. Hill, for and on behalf of himself and the other defendants, for the sale of approximately 916 acres of land in Bolivar County, Mississippi, as described therein, and whether or not the plaintiffs performed their requisite duties and earned the commission, in accordance with the contract. At the close of the evidence, the court sustained a requested peremptory instruction for the jury to find for the defendant William Kenan Hill, and he was discharged. The case was submitted to the jury as to the other defendants and it found a verdict for the plaintiffs against all of them for the full amount demanded. The losing defendants appealed to this Court; but no appeal was taken by the plaintiffs from the discharge of the other defendant.

C. W. Capps, Sr. and Edward B. Hill were friends of long standing. They often played gin rummy together at the Country Club in Cleveland. Capps, Sr. testified that Edward B. Hill, in a conversation at the Club on August 1, 1962, said that a brokerage agent wished to sell some land for him, and he was advised that the 'Symond Place' would be sold for $235 per acre. Capps offered the opinion that the property was worth more but Hill insisted that he would take that amount. Capps asked permission to try to sell it. Hill replied that 'the real estate commission has got to be negotiated.' Capps said he told Hill then and there that 'if we sell it, the commission will be five per cent.' The conversation then drifted off to the details, $54,000 being the amount of money necessary for the down payment, together with the other matters incidental thereto. Finally, just before the conversation ended, Capps asked Hill, 'Is it all right for us to go ahead and offer the place for sale?' Hill's reply was, 'Hell, yes.'

Edward B. Hill denied that he had made a contract or agreed to a fee for the sale. However, when he was asked on cross-examination, 'But you don't know whether you mentioned that it would have to be negotiated, or he mentioned that it would have to be 5%--you don't know which came first in your conversation?', his reply was, 'Well, I can't recall exactly, no, sir. But I know that I said it would have to be negotiated because I was trying to avoid getting into an argument.'

Capps testified that he was in almost daily contact with Hill with reference to this sale, and that the question of commission was not raised again until the escrow money to bind the sale and purchase had been deposited in the bank. There was considerable evidence by both of the Cappses and their employees to show the constant work and attention which was entailed by them not at any rate communicate to the Cappses any opposition thereto or denial of Hill's authority in the matter. This was in spite of the fact that Hill repeatedly assured the plaintiffs that he could deliver the title.

The appellants have assigned as errors and maintain on this appeal that they were entitled to have their several requested peremptory instructions given because (1) no contract was entered into between the parties; (2) Mrs. Jeanette Rankin had no title or interest in the property; and (3) the defendants, other than Edward B. Hill, had not given him any authority to act for them. Besides, they say that the court erred in permitting a recovery for the one-half interest purchased by W. L. Smith; that the instructions were in hopeless conflict; and that it was error to overrule their motion for a new trial.

DID CAPPS AND HILL, UNDER THE EVIDENCE, ENTER INTO A CONTRACT?

The assent of the parties in the formation of a contract must necessarily be gathered from their words, acts and outward expressions. 17 C.J.S. Contracts Sec. 32, pp. 640-643. See also 12 Am.Jur., Contracts, Sec. 19, pp. 515-517. Besides, in Kimbrough v. Smith, 201 Miss. 202, 28 So.2d 850, the opinion went into great detail in the statement of the facts and concluded that, under those circumstances, Kimbrough and Smith had entered into a contract wherein the latter had impliedly agreed to pay the former a broker's fee for the sale of land. After citing authorities, it was observed that Kimbrough expected pay; that he told Smith he was supposed to pay; that the services continued thereafter; and that the services were valuable to Smith. In syllabi 2 and 3, the rule was correctly stated as follows:

'To show an implied contract to pay for broker's services, it must appear that they were performed under such circumstances as to give the recipient thereof some reason to think that they were not gratuitous and not performed for some other person but with expectation of compensation from recipient, and services must have been beneficial to person sought to be made liable.

'A contract to pay reasonable commission may be implied from vendor's acceptance of voluntary services of broker rendered with an expectation of payment, provided vendor knew or had reason to believe that such services were rendered with an expectation of payment.'

See also 8 Am.Jur., Brokers, Sec. 159, pp. 1078-1080, Sec. 146, pp. 1070-1071; 12 C.J.S. Brokers Secs. 61a, 78, pp. 139, 170-171. Besides, the contract does not have to be in writing. Partee v. Pepple, 197 Miss. 486, 20 So.2d 73.

The sharply disputed issue as to whether or not there was a contract, express or implied, between the parties, was properly submitted to the jury.

DID APPELLEES, UNDER THE EVIDENCE, PROCURE THE SALE?

The evidence showed that, immediately following the agreement of the parties on August 1, 1962, the appellees launched their efforts and attempts to sell this property. They advertised in the papers and interviewed interested persons. For approximately six to seven weeks, the full time of the senior partner and much of the time of the younger partner was devoted to this matter. Their employee, Mrs. Mary Catherine Gerard first contacted Milton Smith, who brought his brother, Clarence, into the picture. The Smiths with the map furnished by appellees because Warwick V. Smith their friend and next door neighbor, whom they did not wish to offend was familiar with the property asked the appellees to permit them to let him show it to them. The Smiths then allowed their cousin, W. L. Smith to come into the deal for a half interest which he wished to obtain for his two sons and they after telling Hill that they were going to buy the place together with Edwin B. Hill, worked out the details. Hill had given the appellees the price of the land and the terms of its sale, and they, in turn, had relayed this information, except for increasing the consideration from $235 to $250 per acre to the Smiths.

In Partee v. Pepple, supra, this Court, after the study of a large number of Mississippi cases, citing them, deduced the following rule:

'1. Where the contract between the owner of the property and the agent specifies the price and terms of sale, the agent performs his duty, and is entitled to his commission, when he procures a purchaser ready, willing and able to buy, even though the owner may then decline to sell.

'2. Where property is placed in the hands of a real-estate agent for sale at a certain price, and on specified terms, and a sale is brought about through the efforts of the agent as the procuring cause, he is entitled to his commissions on the sale, even though the final negotiations were conducted through the owner, who, in order to make the sale, accepts a price less than that stipulated to the agent, or when he sells at the price at which the agent was authorized to make the sale.'

See also 8 Am.Jur., Brokers, Sec. 168, p. 1085; 12 C.J.S. Brokers Secs. 91a,...