Pieri v. Sevier
| Decision Date | 02 January 1933 |
| Docket Number | 30307 |
| Court | Mississippi Supreme Court |
| Parties | PIERI et al. v. SEVIER |
Suggestion Of Error Overruled January 16, 1933.
APPEAL from chancery court of Humphreys county, HON. J. L. WILLIAMS Chancellor.
Suit by Cameron Sevier against W. P. Pieri and another. From the judgment, defendants appeal. Reversed, and bill dismissed.
Reversed and bill dismissed.
Watkins, Watkins & Eager, of Jackson, for appellants.
This suit is based entirely on section 6811 of the Mississippi Code of 1930.
Before the complainant can maintain this suit he must show a vested indefeasible right to the appointment as agent upon his making application, and offering to enter into the contract and to furnish sufficient bond. Certainly, under any construction placed on the language of the above section of the Code, the contractor, School Book Supply Company had a certain amount of discretion.
It is a well settled and established principle of equitable jurisdiction that a court of equity will not compel the parties to enter into a contract, and will not attempt to write a contract for any two parties who are sui juris.
Phillips v. McItrath, 217 N.W. 420; Amick v. Huky, 235 N.W. 859, 254 Mo. 37; Terry v. Michalak, 3 S.W. 701.
The courts have no power to make contracts for people, and then request them to perform them. They can only require parties to contracts to specifically perform the contracts they themselves made. This is a fundamental law, and no authority is needed for it.
Fairley v. Strange, 98 S.E. 135.
There being no agreement for a written lease the court cannot require Mr. Copeland to execute a written lease. The courts may require a person to perform a contract he has made. There was no agreement for a written lease and the court is powerless to make one.
Workman v. Copeland, 110 S.E. 526.
The general rule is that, where the court is compelled to enlarge upon negotiations to complete a contract for the sale of real estate, specific performance cannot be had.
Telford et al. v. Ring, 191 P. 179.
The complainant, the appellee, had no vested right in and to the appointment of the agent for the appellant, School Book Supply Company, and the statute upon which his suit is based, section 681.1 of the Mississippi Code of 1930, does not give him any right whatsoever.
The School Book Supply Company is vested with a discretionary power. They would have the right to select their agent from the applicants. Not only that, they would have the authority and would be required by the statute, if none of the applicants were suitable to take step to have local merchants who they did deem suitable make application and tender a contract and bond. This would not be because the School Book Supply owed any obligation to any of the individual applicants, or to any other individual citizen, but it does owe a duty to the people and to the Legislature.
Louis Cochran and W. M. Denny, both of Jackson, for appellee.
There shall also be maintained in each county in this state two or more agencies for the distribution of the books contracted for and one of the distributing points shall be the county site and where there are two sites in the county a distributing point shall be maintained at each; and said agencies shall sell to all persons desiring to purchase said books, to the patrons of the public school; and the contractor shall make arrangements with two or more booksellers or merchants in towns of two thousand or more inhabitants that they may apply for agencies to handle and distribute the books at said places; provided, that such applicant for any agency shall execute and tender to said contractor a valid contract and bond conditioned for the faithful and efficient performance of his trust as agent of said contractor; and provided further, that said contractor and said applicant for said agency agree as to the terms and conditions of said agency, or contract, and the amount of said bonds, and it shall be unlawful for said contractor, either directly or indirectly to give any applicant complying with the provisions of this article any advantage over another in the contract or terms of such agency.
Appellant Book Supply Company was vested merely with the discretion to determine whether appellee was of the character regarded as suitable for the agency by the statute.
22 R. C. L. App. 613, 614, sec. 11.
Agreements which are entered into for the purpose of preventing competition and bidding for public work are contrary to public policy and cannot be, enforced, as they tend to restrain the natural rivalry and competition of the parties and thus produce a result disadvantageous to the public.
The granting of the agency to Pieri under the circumstances of the case was in violation of that part of section 6811 of 1930 Code prohibiting the giving advantage to one applicant over another and, because thereof, the granting of said agency to said Pieri was and is void.
All contracts which are in violation of law or public policy, or grow out of an unmoral transaction are void.
Barker v. Justice, 41 Miss. 240.
A court of equity is a court of conscience, and in the exercise of a broad discretion should see that wrong and oppression are not inflicted under the guise of legal procedure, but that justice is done as the very right of each case may demand.
Herring v. Sutton, 86 Miss. 283.
It is one of the usual powers of a court of equity to correct the defective execution of a power so as to effect the object designed by it.
McCaleb v. Prodat, 25 Miss. 257.
In the construction of statutes, the purpose and intent of the entire act shall be construed to be the meaning and effect thereof.
Grand Gulf Bank v. Archer, 8 S. & M. 151; Koch v. Bridges, 45 Miss. 247; Yerger v. State, 9 Miss. 802, 45 So. 849; McIntyre v. Ingraham, 35 Miss. 25.
A casual perusal and consideration of the whole Chapter 163, Code of 1930, demonstrates it seeks to prevent and eliminate fraud from each and every phase of the school law under consideration. The chapter mentioned covers the subject of schools from the beginning to the end and such section 6811 is but a part, or parcel, of the whole of said Chapter 163.
The provision in the said section 6811 providing that it shall be unlawful for said contractor, either directly or indirectly, to give any applicant complying with the provisions of this article any advantage over another in the contract or terms of such agency, if restricted merely to the form and contents of the contract to be executed between the parties, is not only a departure from the context and palpable purpose and intent of the act but will be, in effect, an amendment thereto that the Legislature has not seen fit to adopt.
In all state institutions the first applicant, if qualified, acquires an instant and vested right.
The chancery court has power to determine Sevier's right to the agency.
Hurley v. Board of Mississippi Levee Commissioners, 76 Miss. 141, 23 So. 580; Herring v. Sutton, 86 Miss. 283.
Argued orally by W. H. Watkins, Jr., for appellant.
The appellee, Sevier, was complainant in the court below, and filed a bill in the chancery court of Humphreys county, where Sevier and Pieri both lived, against Pieri and the School Book Supply Company, a corporation of Jackson, Hinds county Mississippi, for the purpose of canceling a contract between the School Book Supply Company and Pieri, and to...
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