Pearl Realty Co. v. Wells

CourtUnited States State Supreme Court of Mississippi
Citation145 So. 102,164 Miss. 300
Decision Date02 January 1933
Docket Number30252

145 So. 102

164 Miss. 300


No. 30252

Supreme Court of Mississippi

January 2, 1933

Division B

Suggestion Of Error Overruled January 16, 1933.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Action by J. H. Wells against the Pearl Realty Company and another. From an adverse judgment, named defendant appeals. Affirmed.


Chalmers Potter and Green, Green & Jackson, all of Jackson, for appellant.

[164 Miss. 301] Neither agency nor the scope thereof can be proven by the declaration of the alleged agent.

Columbus & Greenville Railway Co. v. Miss. Clinic, 153 Miss. 29, 120 So. 203, 205; McCaskey Register Co. v. Swor, 154 Miss. 396, 122 So. 489; 154 Miss. 396, 122 So. [164 Miss. 302] 753; Walters v. Stonewall Cotton Mills, 136 Miss. 631, 101 So. 495.

The fact of an agency for another may be assumed from the fact that one has acted for another for a great length of time.

Russell v. Palentine Ins. Co., 106 Miss. 290, 63 So. 644, 51 L.R.A. (N.S.) 471; Myers Construction Co. v. Batson, 156 Miss. 689, 126 So. 822.

It is familiar learning that a person dealing with an agent must know at his peril the extent of the agent's authority to bind his principal; but where the principal has placed the agent in a position where he appears with reasonable certainty to be acting for the principal and his acts are within the apparent scope of his authority his acts will bind the principal.

Allen v. T. J. Moss Tie Co., 157 Miss. 392, 128 So. 351.

The authorities seem to be practically uniform that, where double employment exists, without knowledge of the parties, there can be no recovery of commission by the agent against the party kept in ignorance. The rule is not based upon the presence or absence of designed duplicity and fraud, but upon an established policy.

Hayes v. Ryker, 151 Miss. 382, 118 So. 199.

The allegation of a joint contract cannot be proved by proof of a several one.

Kimbrough v. Ragsdale, 69 Miss. 677; Spann v. Grant, 83 Miss. 22; Upton v. Adcock, 145 Miss. 372, 110 So. 774.

The promoters of a corporation are not in any sense the agents of the corporation before it comes into existence, for there cannot be an agency unless there is a principal.

14 C. J. 253.

Since the promoters of a corporation are not in any legal sence its agents before it comes into existence, it is a well settled rule that a contract made by them, even though it may be made for and in the name of the proposed corporation, is not binding on the corporation [164 Miss. 303] when formed, unless it is made so by the charter or statute, or unless it is expressly or impliedly adopted by the corporation after it has come into existence. And a fortiori a corporation is not liable on a contract made with its promoters individually.

14 C. J. 255.

While it is often said, and has sometimes been held, that a corporation may ratify contracts made by its promoters before incorporation, by the great weight of authority, the act of the corporation in adopting contracts entered into by promoters is not a ratification of such contracts in the proper sense, as the term is used in the law of agency, since the promoters could not be its agents prior to its creation, but it is in legal effect a novation or the making of a contract by the corporation as of the date of the adoption. Such ratification or adoption may or may not relieve the promoters from personal liability on the contract, according to the agreement of the parties.

14 C. J. 262.

The instructions given plaintiff were erroneous for the entire record discloses that the Pearl Realty Company had not been organized, and the organization was not made until April, 1929, and the service for which Mr. Wells was claiming compensation was performed prior to March 1, 1929. Therefore Flowers could not be the agent for an entity, which was not in existence.

It was error to permit the witness Wells to give his opinion or understanding of his employment, because this was conclusion of the witness of a matter directly in issue, and invasion of the province of the jury.

Dunlap v. Hearn, 37 Miss. 471; Atwood v. Meredith, 37 Miss. 635; Welch v. Hannie, 112 Miss. 79, 72 So. 861; Birmingham v. Hudson, 222. Ala. 332, 132 So. 1; Knowles v. Boylston, 137 So. 6.

It was error to permit the introduction of the contract exhibit "A" and the letter exhibit "B" to the testimony of J. H. Wells. [164 Miss. 304]

Fondren v. Durfee, 39 Miss. 324; N. O. J. & G. N. R. R. Co. v. Tyson, 46 Miss. 729, 739.

The authority of the agent from the principal, is not shown by the sworn statements of the agent during the trial.

American Bankers Ins. Co. v. Lee, 161 Miss. 85, 134 So. 836.

A plaintiff may not bring an action on one theory, and then during the course of the trial change the entire theory. The plaintiff is bound by the theory of his case as stated in the declaration.

Simon v. Desporte, 116 So. 535.

When the motion by the defendant to exclude and the request for the peremptory instruction was asked, it was not incumbent upon the defendant to point out specifically the reasons upon which he based the requests. The requests for the peremptory instructions presented the question and raised the point as to whether or not the plaintiff below had proved his case in all of its essential requirements.

Covington County v. Morris, 122 Miss. 495, 84 So. 462; Illinois Central R. R. Co. v. Fowler, 123 Miss. 826, 86 So. 460.

When error of law manifestly appears, the correct rule is, that when error of law manifestly appears, the presumption of law is that it was to the prejudice of the party complaining of it, and that the judgment will be reversed by reason of it, unless it appear by the record that it did not operate to the injury of the party complaining.

Jackson v. Jackson, 28 Miss. 674, 683.

To have permitted an amendment allowing a recovery upon a single liability of the appellant would have been erroneous, and such error as to require reversal.

Miller v. The Northern Bank of Mississippi, 34 Miss. 412. [164 Miss. 305]

It is well settled in this state that a plaintiff may not declare upon a joint contract and recover upon a several one.

Wilder v. Harris, 112 Miss. 164, 72 So. 890; Drake v. Surget, 36 Miss. 458; Phipps v. Ingraham, 41 Miss. 256, 258; Carter v. Preston & Stetson, 51 Miss. 423.

The Statute of Jeofails while curing purely defective pleading "does not embrace a new and distinct cause of action."

American Nat. Ins. Co. v. Golden, 133 Miss. 282, 97 So. 580.

One may not sue for a joint tort and recover for a several tort.

Oliver v. Miles, 144 Miss. 852, 110 So. 666.

The cause should be dismissed unless upon remand the plaintiff shall elect to amend, within a period specified in the order of remand.

Tyler v. State, 69 Miss. 395; Dick v. State, 30 Miss. 631; John, a slave, v. State, 24 Miss. 569.

Lotterhos & Travis, of Jackson, for appellee.

If it be that the declaration exhibited in this cause declared on a joint contract and that a recovery was predicated upon a several contract, yet the record is wholly silent as to any objection which the appellee made at the trial as to this cause, and having failed to object specifically upon this ground, the point cannot be raised for the first time in the Supreme Court.

Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830; Spann v. Grant, 83 Miss. 22, 35 So. 217; Jones v. Bunch, 125 So. 551; Knox v. Henderson & Taylor, 135 So. 214, 160 Miss. 476.

The declarations of the agent off of the witness stand cannot be testified to by others in order to show his agency and the scope of it. It does not mean that the agent cannot be put on the witness stand and be permitted to testify as any other witness to his agency as [164 Miss. 306] well as the scope of his agency. Therefore the evidence of the agent, which established or tended to establish that he was the servant of the appellant and in the scope of his employment was competent.

Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 496.

While a corporation is not always bound by engagements made on its behalf by its promoters before its organization, yet after it comes into existence it may adopt the engagements thus made for it in advance. Such preliminary contracts, if within the corporate powers, and not otherwise...

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13 cases
  • Avent v. Tucker, 33948
    • United States
    • United States State Supreme Court of Mississippi
    • March 18, 1940
    ...cannot avail themselves of this point on appeal. Stonewall Life Ins. Co. v. Cook, 165 Miss. 619, 144 So. 217; Pearl Realty Co. v. Wells, 164 Miss. 300, 145 So. 102; Gower v. Strain, 169 Miss. 344, 145 So. 244; La. Oil Corp. v. Davis, 172 Miss. 126, 158 So. 792; Ware v. McQuillan, 54 Miss. 7......
  • Columbian Mut. Life Ins. Co. v. Gunn, 31812
    • United States
    • United States State Supreme Court of Mississippi
    • October 14, 1935
    ...Valley Trust Co. v. Brewer et al., 157 Miss. 890, 128 So. 82; Mitchell v. Finley, 161 Miss. 529, 126 So. 821; Pearl Realty Co. v. Wells, 164 Miss. 300, 145 So. 102; Attala County v. Woodfin, 150 Miss. 287, 116 So. 285. The case at bar is on "all-fours" with the case of Aetna Life Insurance ......
  • Mississippi Cent. R. Co. v. Roberts, 31580
    • United States
    • United States State Supreme Court of Mississippi
    • April 8, 1935 put in error in question not raised at trial. R. R. v. Simmons, 121 So. 146; R. R. v. Highway Co., 144 So. 558; Pearl R. Co. v. Wells, 145 So. 102; La. Oil Corp. v. Bryant, 147 So. 324. There may be two concurring proximate causes, and if both are negligent and both concur to produce inj......
  • Enochs & Flowers, Limited v. Roell, 31165
    • United States
    • United States State Supreme Court of Mississippi
    • April 23, 1934
    ...So. 830; Spann v. Grant, 83 Miss. 28, 35 So. 217; Ozen v. Sperier, 150 Miss. 458, 117 Slo. 117; Pearl Realty Co. v. Wells, 164. Miss. 300, 145 So. 102. There is no proof whatsoever in this record that Mr. Roell at any time relied upon or extended credit to any of the individuals, but on the......
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