Partee v. Pepple

• Decision Date: 11 December 1944
• Docket Number: 35717.
• Citation: 197 Miss. 486,20 So.2d 73
• Court: Mississippi Supreme Court
• Parties: PARTEE v. PEPPLE et al.

20 So.2d 73

197 Miss. 486

PARTEE v. PEPPLE et al.

No. 35717.

Supreme Court of Mississippi

December 11, 1944

Frank E. Everett and J. M. Forman, both of Indianola, for appellant.

Cooper & Thomas, of Indianola, Wm. F. Taylor of Drew, and H. Lee Herring, of Ruleville, for appellees.

McGEHEE, Justice.

This appeal is from a decree of the chancery court which dismissed the bill of complaint of the appellant, Charles W. Partee, a real estate agent who sued to recover of the appellees a 5% commission on the sale of a Delta plantation owned and sold by the appellees, W. O. Pepple and wife, to their co-defendant and appellee, J. V. May, allegedly through the efforts of the appellant Partee and pursuant to a contract between him and the owners of said land in that behalf. At the conclusion of the evidence offered by the complainant there was a motion to exclude the same and to render a decree in favor of the defendants. This motion was by the court sustained, and the complainant has prosecuted this appeal.

The bill of complaint was sworn to and waived answers under oath. There was filed as an exhibit thereto a written contract entered into between the complainant Charles W. Partee and the defendants W. O. Pepple and wife, dated July 9, 1942 granting the right and option unto the complainant, or his designee, to purchase the lands therein specifically described and stated to contain '1,080 acres more or less', and obligating the said owners to convey the same to the said Charles W. Partee, or his designee, at any time from and after that date up to and including the 5th day of September, 1942, at the purchase price of $75 per acre, less a 5% real estate agent's commission thereon. Then, in a subsequent paragraph of the contract, it was provided that if such right so granted should be exercised on or before December 1, 1942, a contract of purchase and sale should be executed by the parties of the first part and the party of the second part, or his designee, and that thereupon the parties of the first part were to furnish promptly an abstract of title to said land and give fifteen days for an examination of the title after the delivery of such abstract the delivery of possession of the property to be made on January 1, 1943. There was also filed as exhibits to the bill of complaint certain correspondence between the complainants and the defendants dated subsequent to the execution of the above mentioned contract and which will be hereinafter discussed.

The answers, unsworn to, of each of the defendants were duly filed denying all of the material allegations of the bill of complaint. In the answer of W. O. Pepple and wife, there was incorporated a cross-bill which reaffirmed all of the denials contained in their answer and asked that the contract between themselves and the said Charles W. Partee be reformed on the ground that the date for the expiration of the contract was originally written therein so as to read December 1, 1942 and that by agreement of the parties it should have been changed at the time of its execution so as to read September 5, 1942, and that the date was accordingly changed in one paragraph thereof, but through mutual mistake was left to read December 1, 1942, in a succeeding paragraph. This was the only relief sought by the cross-bill, which was unsworn to and did not waive answer under oath. The complainant's answer thereto was under oath and denied the alleged mutual mistake; and upon the trial, he testified that the contract as actually executed was in accordance with the intention of the parties and that he was to have until September 5, 1942, to produce his prospecutive purchaser and be given until December 1, 1942, to close the sale. In this state of the pleadings, it will be readily seen that the pleadings filed on behalf of the defendants and cross-complainants did not avail them as evidence to meet such proof as was offered by the complainant Charles W. Partee.

The complainant testified as a witness in the case, after having taken an order dismissing his suit as to Mrs. W. O. Pepple, who had died since the commencement thereof. At the time of the trial, W. O. Pepple was still living but was in such state of ill health that he could not be present in court. There was an agreement to the effect that his deposition might be taken before the defendants were required to rest their case, but which was not done due to the fact that the trial court sustained the motion of the defendants to exclude the evidence offered by the complainant. The said W. O. Pepple died subsequent to the trial, and the cause was revived against the administrator of his estate.

The complainant testified over the objection of the defendants that he advertised in the Commercial Appeal in January, 1942, for a Delta plantation consisting of eight hundred to twelve hundred acres of sandy loam land, for a client; that the Pepples answered such advertisement by writing him a letter, offering their land for sale; that thereupon and within less than two weeks he drove down from Memphis in his automobile to the home of the Pepples, located about four miles east of Ruleville, Mississippi, and obtained the necessary information regarding the nature and character of the land, the kind and condition of the improvements, etc.; that he left a blank application with the owners to be filled out in confirmation and elaboration of the memorandum which he had taken on the occasion of his visit to their plantation, and that this blank application was later mailed to him by Mr. Pepple without being filled out or signed but with an endorsement thereon to the effect that 'It will be O. K. for you to handle the place. Might be well to come down and let us have a little more definite agreement.' Objection to all this testimony was sustained on the ground that these negotiations occurred prior to the execution of the written contract on July 9, 1942, but the witness was permitted to use the memorandum to refresh his memory. However, we can lay aside these prior negotiations in reaching our decision in this case and consider only the said written contract and what transpired subsequent to its execution and in pursuance thereof.

It was shown that, following the execution of this contract, the complainant inserted frequent and repeated advertisements in the Commercial Appeal, at his own expense, disclosing the nature and character of the plantation, its approximate acreage, price per acre, location with reference to an improved highway, bus line and mail route, the number of tenant houses, character of the main residence, and the fact that it was supplied with artesian wells, electricity, telephone, commissary, gin system, etc., and that the land was encumbered by a 4 1/4% easy term loan for much more than half of the purchase price required, and further stating that the land was offered for sale because of the serious illness of the owner.

On August 3, 1942, the defendant J. V. May of Mayhew, Lowndes County, Mississippi, who was acquainted with the complainant Partee and willing to negotiate with him for the purchase of the property in question, answered one of these advertisements, stating in his letter that he had sold his own plantation in the Delta several months prior thereto, made it known that he was interested in buying this land, that he wanted to see it, and requested the name of the owner and the location of the place in order that he might go and inspect it at such a time as he could arrange to do so. He also stated in this letter that he would tell the owner upon his visit of inspection that the said agent Partee 'told me to drive by and look the place over,' and that he would thereafter get in touch with the latter in regard to the matter. Mr. Partee replied to this letter on August 5th, stating that the place was known as the W. O. Pepple plantation, located four miles east of Ruleville, and giving Mr. May specific information as to how he could get there. On that same day, he wrote the Pepples and also sent them a copy of the letter which he had written to Mr. May, thereby fully informing them of his prospective purchaser, whose interest had been aroused solely by the repeated and detailed description of the property carried in the Commercial Appeal at the instance and expense of such agent as aforesaid. Thereafter, complainant further contacted his prospect by telephone, when it was ascertained that he was still interested in the place, but was unable to state just when he could arrange to go and inspect the same due to the fact that he was conducting some livestock sales over in Lowndes County where he resided. Subsequent to this conversation, the complainant wrote another letter to Mr. May on September 3, 1942, in regard to the matter, but the proof now before us fails to disclose whether or not Mr. May looked at the plantation at any time prior to September 5, 1942.

However after the expiration date of September 5, 1942, stated in the contract between the said Partee and the Pepples, the parties continued to deal with the contract the same as if it were still in full force and effect. From the 15th to the 18th of September, Mr. Partee, acting alone and also in co-operation with another real estate agent, was still showing the plantation to their several prospects with the knowledge and acquiescence of the Pepples, and without any question being raised by the latter in regard to the written contract with the said Partee having expired by its terms. The proof discloses that they were still willing to sell their land to any of his prospects who were willing to buy upon the terms theretofore authorized, that is to say, $75 per acre. In fact, on September 19, 1942, when it was known to them that the agents were continuing their...