Lampkin v. Heard

• Decision Date: 26 January 1925
• Docket Number: 24561
• Citation: 102 So. 565,137 Miss. 523
• Court: Mississippi Supreme Court
• Parties: LAMPKIN v. HEARD. [*]

102 So. 565

137 Miss. 523

LAMPKIN v. HEARD. ^[*]

No. 24561

Supreme Court of Mississippi

January 26, 1925

Division B

1 CONTRACTS. Meaning of contract to be determined from contract as whole.

In construing particular provisions of the contract, the contract as a whole will be looked to and its meaning determined from the entire contract.

2. APPEAL AND ERROR. Judgment of trial court based on conflicting evidence upheld, if evidence is sufficient to support it.

Where an option was given to a person to be exercised within the fixed period of time with a right of extension of the time on making or discovering certain facts provided for extending the option, and where there is a conflict in the evidence as to whether such facts exist, and the chancellor finds for one of the parties, the judgment of the chancellor will be upheld, where the evidence is sufficient to support it.

HON. T P. GUYTON, Chancellor.

APPEAL from chancery court of Lowndes county, HON. T. P. GUYTON Chancellor.

Suit by C. B. Lampkin against G. T. Heard. From judgment for defendant, complainant appeals. Affirmed.

Judgment affirmed.

John F. Frierson, for appellant.

The primary purpose of the contract was declared to be finding oil and gas. But there were other distinct purposes set out in the contract all the way through, and the profits were to be divided equally. It was provided in the contract as follows: First: That the lands mentioned therein should be valued at twenty-five dollars per acre for the lands across the creek from the city of Columbus, and seventy-five dollars per acre for the lands on the same side of the creek of the city of Columbus. Second: That the appellant as second party to the contract, should have an additional six months to the option in case there was evidence sufficient to justify the parties to believe that there was oil or gas on the land. Third: That if the parties decided to exploit the land for oil or gas they would determine whether to sell the lands or to develop the oil and gas themselves and in case they determine to sell that the price, as above stated, be deducted from any sale price and the amount over and above should be considered profit, to be divided equally. Fourth: In case they determined not to sell, but to develop the industry that additional arrangement should be made between them as to financing such project. Fifth: That the first party, the appellee, would finance the purchase of the other properties that both of said parties should agree as needed or wanted by them for the production of oil or gas or both. Sixth: That any lands which had been spoken of by the second party as desirable, in case same were rejected by the first party, then the same might be used otherwise by the second party and the first party would hold in strict confidence any information which had been conveyed by the second party. Seventh: That the first party, at the time of the contract, owned an option on certain lands known as the J. W. McKissick lands and he assigned to the second party by the contract an undivided one-half interest in and to such option. The principal matters in this contract upon which the suit is based are the paragraphs numbered five and seven.

Aside from the fact as to whether oil and gas were present, it is evident that the appellee, as well as appellant considered the scheme of acquiring additional property an advisable one, and was urging from time to time, the appellant to secure the Mckissick tract and the Puckett tract and other lands of specific mention is made in the evidence. The tracts of McKissick and Puckett were the only tracts actually acquired. They were acquired under the terms and conditions of the contract. Large benefits were derived from the sale of these lands.

The only question to be decided by the court is whether under the facts and the evidence the appellant is entitled to receive his proportionate share in the lands (McKissick and Puckett tracts) or in the profits that have been derived from them. Appellee is a great letter writer and much of his correspondence with appellant was introduced into evidence. A number of these letters had been filed as exhibits to the bill. Most of this correspondence by both parties was in longhand and few or no copies were kept, but a number of the letters of appellant were produced and filed as exhibits to the cross-examination.

The appellee denied in his oral testimony, first, that any previous discussion of the contract prior to the date of it had been held, and, second, alleged in his answer and in his evidence that the McKissick tract was not purchased under the option in which an interest had been conveyed to appellant, that the option mentioned in the contract, Exhibit "A" had expired before the McKissick tract had been purchased. We think that these letters fully disclose that appellee and appellant were working together and for the benefit of both parties and further that the profits thereto were to be divided fifty-fifty.

Appellant testified that after entering into the contract with Mr. Heard with reference to securing and acquiring lands, "acting under the contract, we got the McKissick property and the Puckett property." Appellant's testimony further shows that there were many telephone conversations and many visits between the parties and that when the matter of the sale of the land to Elliott came up it was within the life of the contract and Mr. Heard recognized appellant's right and portion of the property. The testimony of the appellant is direct, straight forward and the principal reliance is placed upon the letters introduced into evidence which speak for themselves. The testimony of the appellee is vague and he introduced only two letters of appellant. He made a general denial of any obligation to the appellant and claims that he had employed C. B. Lampkin at a salary of five dollars per day. This testimony is directly contradictory of the contract which the parties entered into. Testimony that Lampkin or he did not want any land but only an interest in the oil rights is directly contradictory of the contract because the contract looked to the purchase of additional lands and stated that the above price which might be paid for additional lands was to be divided equally between the parties.

The prayer of the bill is not for one-half interest in the entire value or for a one-half interest in the profits on the sale to Elliott but simply for a one-half interest in the profits on the McKissick tract and the Puckett tract. This prayer should have been allowed and the court should reverse this case and grant a decree herein in accordance with the prayer quoted. The appellant has an equitable interest in the property for his one-half interest in the lands less the purchase price thereof and for one-half interest in any and all profits which have accrued by reason of payments which had been made by Elliott during the time he owned the land.

Baskin & Wilbourn, for appellee.

The case was heard in the court below on bill and answer and proof. There were only two witnesses, the complainant and the defendant. Both testified orally before the chancellor in open court. The chancellor saw and heard both, and resolved the conflicts in their testimony and the issues between them in favor of appellee, after overruling practically all of the many objections of appellee to appellant's testimony. This court, we submit, may not disturb the chancellor's findings of fact in favor of appellee unless they are clearly not manifestly wrong. We submit that the decision of the chancellor was manifestly right.

Appellant was and is a surveyor or civil engineer by profession, and seemed to have been obsessed with the idea that oil could be found in that vicinity. Appellant owned no lands near Columbus and had no interest in any of the above-mentioned lands. Full of the notion that there was oil in the vicinity of Columbus, and that some character of test that he claimed had been given him by the Government authorities indicated the presence of oil, appellant negotiated with appellee for the contract, Exhibit "A", sued upon, dated August 6, 1919. Appellant made exhibits of his bill and offered several letters antedating the date of the contract, all of which were objected to, and none of which, as we submit, should have been admitted in evidence. They were admitted by the court, however, and we, also, say that they proved nothing to the advantage of appellant.

Appellee, in his testimony, explains that before any negotiations were taken up with him by Lampkin, and in the early part of the year 1919, he found he had been in possession of part of McKissick land by mistake for several years and it had been sold for taxes, but time for redemption had not expired, and he employed Lampkin and paid him to look it up for him. None of the letters show or recognize a completed contract between the parties of themselves, and it is clear that none of them show any consummated agreement to buy the McKissick lands, or any lands for the joint account of the parties, nor any payment for any lands by Lampkin, nor any purchase of said or any lands by the parties. They relate to negotiations between the parties for a contract finally resulting in the one of August 6, 1919, sued on, and which negotiations were merged in or done away by the contract of August 6, 1919. They are no part of the contract. Exhibit "A", and are not admissible and should have been excluded. A. & V. R. R. Co. v. Kropp, 92 So. 691.

No decree in favor of appellant could be based on said letters nor can the court now disturb, we submit, the finding of the chancellor on the evidence of Mr. Heard relating thereto. The contract, Exhibit "A", to the bill, speaks the sole agreement of the...