Hunt v. Gardner
| Decision Date | 04 April 1927 |
| Docket Number | 25770 |
| Court | Mississippi Supreme Court |
| Parties | HUNT et al. v. GARDNER. [*] |
1 CONTRACTS. Court, in construing contract, should ascertain parties' intention from their situation at time contract was made, looking also to subject-matter.
Court in construing a contract, should place itself in the situation of parties at time contract was made, and ascertain intention from the contract in the light of such situation, looking also to the subject-matter of the contract.
2. PRINCIPAL AND AGENT. Agent's commission dependent on payment of royalty to principal could not be defeated by reducing royalty without agent's consent thereto.
Where contract of agency for promotion of the use of certain process of road and street paving provided for commission to agent dependent on royalty collected by principal from various contractors, agent's right to compensation could not be defeated, by reducing royalty below amount fixed by express terms of contract, unless he agreed thereto, and thereby waived his right to compensation growing out of particular contract.
3 ATTACHMENT. Nonresident creditor may maintain attachment within state against nonresident debtor.
Nonresident creditor has right to maintain an attachment within state on ground that the defendant debtors are nonresidents.
4. ATTACHMENT. Compensation to sales agents as royalty under terms of contract became due after settlement with contractor, authorizing attachment therefor.
After settlement by sales agents with contractor for royalty accruing to them under terms of contract, and releasing him from further liability thereon and accepting in lieu thereof obligation of city for whom work was done, the compensation to which they were entitled under the contract became due so as to authorize an attachment therefor.
HON. W. W. MGRUDER, Special Judge.
APPEAL from circuit court of Winston county HON. W. W. MAGRUDER, Special Judge
Suit by Walter H. Gardner against C. A. Hunt and another. Judgment for plaintiff, and defendants appeal. Affirmed.
Judgment affirmed.
E. M. Livingston and Z. A. Brantley, for appellants.
I. The verdict is contrary to the evidence. This case should be decided upon the contract entered into by the parties. The contract seems to be predicated upon the theory that appellee is to be paid on all contracts wherein a royalty of thirty cents per square yard is collected by the appellants. The contracts sets forth that fact clearly and we submit that appellee is not entitled to any commissions on any contract that does not carry a royalty of thirty cents. Any contract made carrying a different royalty than thirty cents per square yard is not covered nor contemplated in the contract entered into by the parties.
The contract relied upon by appellee speaks for itself and sets out the conditions, carrying a fifteen-cent royalty instead of a thirty-cent royalty. We submit that under the contract itself no loyalty is provided and no commissions are provided which would inure to the benefit of appellee and that appellee can collect nothing on this contract or any other contract in the state of Mississippi that provided a royalty of less than thirty cents per square yard.
II. The verdict is contrary to law. Appellee set out in his affidavit for attachment all of the eleven statutory grounds of attachment, but the only one relied upon and the only one contended for by counsel in the lower court was the first statutory ground: "That the defendant is a foreign corporation, or a nonresident of this state."
The proof clearly shows that all the parties to this suit were residents of the state of Tennessee, but it further shows that appellants were served with personal service by the sheriff of Winston county. They were in the town of Louisville at the time or immediately after the time the suit was filed and were within the jurisdiction of this court. See Hackettstown Bank v. Mitchell, 28 N.J.L. 516; Kugler v. Shreve, 28 N.J.L. 129.
Nonresidence alone is not a sufficient ground for an attachment, but in order for an attachment to stand on this ground, it must be shown that the defendant is indebted to plaintiff and that the debt is due. In view of this position we call the court's attention to Mack v. Jacobs, 70 Miss. 429.
If the above view is correct and the attachment should have failed and been dismissed, then the court would have had no jurisdiction of the parties, all of them being nonresidents of the state of Mississippi. Courtney v. Pradt, 160 F. 561.
Flowers, Brown & Hester, for appellee.
I. Counsel for appellants insist that appellee was entitled to nothing on the paving laid at Louisville because they received only fifteen cents per square yard as royalty instead of thirty cents per square yard, as provided in the contract of employment.
The construction placed on the contract by counsel for appellants is entirely erroneous. The clause on which they rely is not a condition which determines appellee's right to compensation, but such clause was inserted in the contract to show on what basis appellee was authorized to let contracts for the Willite paving process, to show the source or fund from which his commission was to be paid, and to fix the time when appellee should be entitled to collect compensation. Hart v. Gardner, 74 Miss. 153, 20 So. 877; Waddell v. DeJet, 76 Miss. 104, 23 So. 437. An instrument is to be construed most strongly against the person who draws it. Home Mut. Fire Ins. Co. v. Pittman, 111 Miss. 420, 71 So. 739.
The construction placed on the contract in question by counsel for appellants is not entitled to much weight. Such construction is not justified by the wording of the instrument itself; and looking at it from the situation of the parties and considering the subject-matter of the contract, we think it very unreasonable to say that the parties intended to enter into an agreement which required appellee to work for appellants at his own expense on a commission proposition and gave appellants the right to defeat his right to compensation at will. Harris v. Townsend, 101 Miss. 590, 58 So. 529.
II. Was appellee entitled to an attachment against appellants? They are nonresidents. This is admitted. Then it would seem that the attachment was proper. The right to it is given under the first ground for attachment enumerated in the statute. Section 129, Code of 1906 (section 121, Hemingway's Code).
However, counsel for appellants say that appellee was not entitled to the attachment because he was a nonresident also. This question was settled in Barrow v. Burbridge, 41 Miss. 622. The remedy by attachment was extended after the decision of the case of Hosey v. Ferriere, by act of March 3, 1848, to nonresidents against the estates of nonresidents. Article 17, Hutch. Code, page 823.
Under this statute the attachment in the case of Beer v. Hooper, 32 Miss. 246, was sued out, which case is cited and relied upon by counsel for defendants in error, as settling the question presented in this assignment of error in favor of the defendants in error.
This case cannot settle any question arising under an attachment in this case now under consideration as the right was expressly given by the statute of 1848 to nonresidents to sue out an attachment against a nonresident. The validity of the attachment in this case has to be tested by the revised statute of the attachment law in the Revised Code of 1857. See article 1 of this law, page 372.
In the use of the language "the creditor" it seems to us the codifiers intended to give the remedy of attachment to all creditors, residents as well as nonresidents of the state of Mississippi.
The present law on attachment is very similar to that in force in 1857 on this subject. The statute giving the right to the action is the same now as then and the ground in question, that of nonresidence, is the same. All parties to the action in Barrow v. Burbridge, supra, were nonresidents, as here, and we insist that the decision in that case settles the question here.
This is an appeal from a judgment of the circuit court of Winston county, growing out of the following state of facts: Appellee was the agent of appellants, employed by them to promote the use of the Willite process of road and street paving in the state of Mississippi, the contract of employment being in words and figures as follows:
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