Poole v. McCarty

• Decision Date: 09 June 1958
• Docket Number: No. 40831,40831
• Parties: Leroy A. POOLE v. Emmette McCARTY et al.
• Court: Mississippi Supreme Court

Page 922

103 So.2d 922

233 Miss. 724

Leroy A. POOLE v. Emmette McCARTY et al.

No. 40831.

Supreme Court of Mississippi.

June 9, 1958.

Simrall, Aultman & Pope, Hattiesburg, for appellant.

McFarland & McFarland, Bay Springs, for appellees.

ETHRIDGE, Justice.

This case involves the extent of the right of the complainant to amend his bill of complaint, after this Court has previously held the original bill to be insufficient and remanded the case to the trial court, generally and without specific directions.

In August 1955 appellant Poole filed a bill in the Chancery Court of Smith County against appellee McCarty and others, seeking to obtain specific performance of a contract between him and McCarty, dated December 7, 1954. When the contract was made, McCarty owned the surface and some minerals in certain lands in Smith County, and had the right to purchase from the Federal Farm Mortgage Corporation its one-half mineral interest. 7 U.S.C.A. Secs. 1033-1039. By the contract McCarty employed Poole to purchase and recover for him the mineral interest owned by that corporation, at the option of Poole. Poole was to pay the amount necessary to purchase the minerals for McCarty. McCarty agreed to convey to Poole 90 percent of the minerals so purchased. It was 'understood and agreed that this option shall continue for a period of 90 days from and after this date, including any optional time which the First Parties (McCarty) may have to repurchase said mineral interest from the present owner, * * *.'

The original bill of complaint was based upon that contract. It alleged that Poole immediately filed application in McCarty's name for the purchase of the minerals, and prosecuted the application with diligence, as a result of which the Federal Farm Mortgage Corporation in May 1955 offered to convey to McCarty its one-half mineral interest for $240,000. Complainant averred that when he heard of this offer he exercised his option in the contract and offered to pay that sum, but McCarty refused to carry out the contract and to convey to him 90 percent of the minerals, but on the contrary, McCarty purchased such minerals in his own name and for his sole benefit. The bill alleged that complainant was ready, able and willing to pay the sum of $240,000 for the minerals, and sought to obtain specific performance of the contract.

To this bill McCarty and other defendants, except Gulf Refining Company, which holds a lease on the land from the Federal Farm Mortgage Corporation, filed a general demurrer, averring among other things that the option and contract rights of Poole expired by the terms of the contract of December 7, 1954, 90 days from its date. The chancery court sustained this general demurrer and allowed an interlocutory appeal to settle the principles of the case. On November 5, 1956, this Court affirmed the chancellor's decree sustaining the demurrer to the bill, and remanded the case. Poole v. McCarty, 90 So.2d 190, 192. It was held that 'the contract as written expired ninety days after date * * * by its terms as set forth in the contract as written; that we are not authorized to substitute for the parties' a provision for a period of 90 days after a price is fixed on the minerals by the Federal Farm Mortgage Corporation. The opinion pointed out the contract stated that the 90 days included 'any optional time which the first party may have to repurchase said mineral interest from the present owner'; that the bill did not allege that the corporation gave McCarty any such optional time, and, even if it had, the contract nevertheless provided that the 90 days would begin running from the date of the contract including any such optional time.

In February 1957, complainant Poole filed an amended bill of complaint containing the same allegations made in the original bill, and adding to it new paragraphs numbers 9-13. The new amendments charged that, under the construction of the contract by this Court, it was 'unperformable' by either party, because within 90 days Poole could not pay the amount necessary to purchase, since the Federal Farm Mortgage Corporation had not within that time fixed the purchase price. The new amendments averred that before the contract was made the parties had mutually agreed on a performable agreement; and the agreement which in fact the parties made was that, when the Corporation fixed the price for the minerals, Poole would pay at his option the amount necessary to purchase them, 'and the said date when the Federal Farm Mortgage Corporation fixes said price will be designated 'this date' in the agreement and contract.' The bill averred that McCarty was given optional, added time by the Corporation in which to make payment for the mineral rights and 'took and used such added optional time'; that it sent the notice and form for agreement of purchase to McCarty, who kept it to himself and did not notify Poole of its receipt. Hence for such mutual mistake the bill prayed that the contract should be reformed, and a decree rendered against all of the defendants requiring them to convey to complainant 90 percent of the minerals received from the Corporation for the sum of $240,000, in their proportionate interests.

The defendants filed a plea in bar and a general demurrer, both based upon a plea of res judicata in the earlier judgment of this Court. The chancery court sustained the plea...