Montgomery v. Hollingsworth

• Decision Date: 12 December 1921
• Docket Number: 22012
• Court: Mississippi Supreme Court
• Parties: MONTGOMERY v. HOLLINGSWORTH

90 So. 79

127 Miss. 346

MONTGOMERY v. HOLLINGSWORTH

No. 22012

Supreme Court of Mississippi

December 12, 1921

1. LANDLORD AND TENANT. Tenant, entering under contract unenforceable under statute of frauds, held to become a tenant from year to year.

Where one enters upon the leased premises in pursuance of a contract unenforceable under the statute of frauds, which contract contemplates annual settlements between the landlord and tenant, a periodical tenancy is thereby created, and the lessee becomes a tenant from year to year.

2 INJUNCTION. Mandatory injunction should not be granted without notice.

A mandatory injunction should not be granted without notice to the defendant, unless there can be no reasonable doubt of its propriety.

HON. J D. MAGRUDER, Special Chancellor.

APPEAL from chancery court of Bolivar county, HON. J. D. MAGRUDER Special Chancellor.

Bill by Sam Montgomery against J. D. Hollingsworth for injunction and from an order dissolving a temporary injunction plaintiff appeals. Affirmed and remanded.

Affirmed and remanded.

Sillers, Clark & Sillers, for appellant.

We invite the court's special attention to the opinion of Justice CALHOUN in the case of Mallett v. Lewis, in 61 Miss. 105, which, according to our understanding, is absolutely conclusive of the case above. In the instant case the only time ever contemplated by either of these parties in reference to the working of this land was five years and the time during which this contract was to be continued jointly by them was the essence of the contract and constituted the very basis of their agreement. In the case of Mallett v. Lewis, the defendant there bound himself not to reenter the drug business in the town of Edwards for five years and for a term of five years to buy all his own drugs from the plaintiff and to influence his friends to do the same, if goods could be obtained from the plaintiff on as good terms as elsewhere. And in that case, the court held that there was an express agreement that the contract should last for five years, and that it was evident that, so far from the parties contemplating full completion within a less period, the time specified was a material part of the contract; and the court uses this language: "While it is true that the parties must know the uncertainty of life and the possibility of death within the year, yet where they deliberately and expressly contract for a longer period of time than the statute permits, it cannot ordinarily be said that the time named by them was not of the essence of the contract and did not constitute the very basis of their agreement." And the court held in this case that the contract sued on was within the statute of frauds. Our court has repeatedly held that the writing required by the statute which would be sufficient to take a verbal contract out of the statute must contain all of the substantial terms of the contract so that they may be understood from the contract itself, or some other writing to which it refers, without resorting to any oral evidence (See McGuire v. Stephens, 42 Miss. 742; Waul v. Kirkman, 27 Miss. 823); and certainly with the record in its present shape each party claiming that the written agreement between them should contain different terms both as to the manner in which the arrangement between them could be dissolved and as to the very terms of the contract itself in regard to the timber on the property, not only shows that the substantial terms of the contract were never even put into writing, but shows that the parties themselves had never agreed on what those terms should be. It is not even contended that any writing of any kind was ever signed by appellant Montgomery or by the appellee Hollingsworth.

We call the court's attention to the case of the Gulfport Cotton Oil Company v. Heneau, 94 Miss. 904, in which the court held that a memorandum of a contract within the statute of frauds must be signed by the party to be charged. It is not contended or shown in any way by this record that there was ever any delivery, or attempt at delivery, of a written contract. We call the court's attention to the case of Johnson v. Brooks, 31 Miss. 17; and Jelks v. Barrett, 52 Miss. 315. In each case, our court held that the writing, although complete in all other respects, is not sufficient unless it has been delivered.

We therefore respectfully insist to the court that appellee Hollingsworth had absolutely no contract which is recognized under the laws of the state of Mississippi with appellant Montgomery and therefore had no right upon the property of Montgomery or to interfere in any manner whatever with the property or persons of said Montgomery or with tenants on his property and we respectfully submit to the court that the action of the chancellor in dissolving the injunction issued in this case was error and that the injunction should have been sustained.

Roberts & Hallam, for appellee.

The contract which the court below found to exist between the parties to this litigation is embodied in the writing to be found at pages 24 to 27 of the record. It is contended by the appellant that the verbal agreement of partnership between the parties is void because not in writing, and that this written agreement is also void because not signed by the parties, for the reason as alleged that it violates that provision of the statute of frauds which provides that: "An action shall not be brought whereby to charge a defendant or other party . . . (c) upon any agreement which is not to be performed within the space of one year from the making thereof . . . unless . . . the promise or agreement upon which action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized." (Code 1906, sec. 4775; Hem. Code, sec. 3119.)

In the first place, the statute does not declare that the contract shall be void if the statute is not complied with; it merely declares that an action shall not be brought on it. As to this the rule is thus stated: "Contracts falling within the statute are not ordinarily void or illegal. The statute as a rule merely prohibits, an action to be brought thereon, and if the parties see fit to carry them out, the transactions are valid. So when the parties see fit to carry out an oral lease they are bound by its terms as long as the relationship of landlord and tenant continues. If, however, the statute expressly declares that the contract shall be void, it has no validity whatever." 20 Cyc. 284; Sims v. Hutchins (Miss.), 8 S. & M. 328.

The suit in the present case was brought by the appellant, not to enforce the contract, not by it "to charge the defendant" Hollingsworth, but in effect to have the court declare that no such contract was ever made and to enjoin the appellee from operating under it. The court has held that the contract was made, and was reduced to writing, and that, believing the testimony of Hollingsworth, it was not signed by the parties because of the repeated representations of Montgomery to Hollingsworth that he could not secure a typewriter with which to copy it, but that he would copy it and submit it for signature. This evidence shows that Hollingsworth even went so far as to bring to Montgomery's office an old typewriter of his own in order that the contract might be copied, and that a part to repair this typewriter was secured from the circuit clerk's office, and that even then Montgomery, under one representation or another, put Hollingsworth off, and put off the copying of the contract, all the time permitting Hollingsworth to work under the contract and enhance the value of the appellant's land. To permit the appellant now to come into a court of equity and have the contract declared void because the writing was not signed, would be to permit him to use the statute as an instrument of offense, and as a means to perpetrate a fraud upon the right of the appellee. It has even been held "in some states equity will enforce an oral promise to sign the writing on the ground that to refuse to do so would permit the perpetration of a fraud." 20 Cyc. 285. This is but an application of the equitable maxim that "Equity will consider that done which ought to have been done." 25 R. C. L., sec. 343, p. 700.

By referring to the written contract as originally drawn the court will observe that the contract of partnership itself was to run for no definite time, but might be dissolved by either party at any time in a manner pointed out therein. The amendment which the court below found the appellant agreed to, merely provided that this dissolution should not take place until the end of any one year. So that the contract might have been performed in one year, and this alone puts it without the statute of frauds. It is true that the contract also provided that the appellant was to rent to the partnership his half section of land for the term of five years, but this had reference to the lease alone and not to the continuation of the partnership, else the contract is very inaptly drawn. Montgomery drafted the agreement, and it must be construed most strongly against him, under any view, there was a verbal lease of this land by Montgomery to the partnership, and that was sufficient to compel him to execute a written lease. Lobdell v. Mason, 71 Miss. 937, 15 So. 44; Hooper v. McAllum, 87 Miss. 441.

If this be not true, then the fact that the appellant permitted the appellee as agent for the partnership to enter upon the lands and, by improving them and carrying on the farming operations, pay the rent, which was the only rent which the appellant individually was to receive, created a periodical tenancy from year to year, and,...