Pountaine v. Fletcher

• Decision Date: 24 February 1930
• Docket Number: 27559
• Citation: 126 So. 471,158 Miss. 720
• Court: Mississippi Supreme Court
• Parties: POUNTAINE v. FLETCHER et al

126 So. 471

158 Miss. 720

POUNTAINE v. FLETCHER et al

No. 27559

Supreme Court of Mississippi

February 24, 1930

Division A

1. LANDLORD AND TENANT. Lessee of hotel property was entitled on expiration of lease to recover value of office supplies in accordance with lease provision.

Where lease contract for lease of hotel property obligated lessor to purchase from lessee all provisions and supplies on hand at time of expiration of lease, the lessee was entitled to recover value of filing cabinet and check protectograph machine which might properly be classed as office supplies and included within such provisions of contract.

2. FRAUDS, STATUTE OF. Statute had no application to alleged oral contract requiring lessor to pay for alteration by lessee fully performed within one year.

Where alleged oral contract between lessor of hotel property and lessee requiring lessor to pay cost of material and labor necessary to effect change in kitchen and dining room was fully performed by lessee within one year, and nothing remained to be thereafter done except payment of consideration for performance, the statute of frauds held no application thereto.

3 PLEADING. Court properly required count seeking recovery of definite amount on general averments of damage to lessee from leaking roof to be made more definite.

Where count sought a recovery in sum of thirty-five thousand dollars on general averments of loss and damage to lessee of hotel property by reason of a leaking roof with consequent and uncertain expense of repairs to interior of building, and con- sequent loss of profits resulting from loss of customers and trade, court properly ordered plaintiff to make count more definite and certain, and, on failure to comply with order count was properly dismissed.

HON. S. F. DAVIS, Judge.

APPEAL from Circuit Court of Washington County HON. S. F. DAVIS, Judge.

Suit by Thomas Pountaine against Leon Fletcher and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Judgment reversed and cause remanded.

J. M. Cashin and Farish & Bell, all of Greenville, for appellant.

For the definition of the words Supplies and Provisions, see:

6 Words & Phrases 5753; State v. Angelo, 51 A. 905, 906, 71 N.H. 224; 8 W. & P. 6800; W. P. Fuller & Co. v. Schrenk, 68 N.Y.S. 781, 784, 58 A.D. 222; In re Hazle Tp. (Pa.), 6 Kulp 491, 493; Wright v. Walton, 56 Miss. 1-5; Strickland v. Stiled, 33 S.E. 85, 107 Ga. 308; Jones v. Eubanks, 12 S.E. 1065, 86 Ga. 616; Trimble v. Durham, 12 So. 207, 70 Miss. 295; Robertson v. Ward, 20 Miss. (12 S. & M.) 490; Farmers' Loan & Trust Co. v. City of New York, 17 N.Y.S. Ct. (4 Dosw.) 80; Dewell v. Hughes County Comm'rs, 66 N.W. 1079, 8 S.D. 452; Killock v. Parcher, 9 N.W. 67, 52 Wis. 393; Virginia Development Co. v. Crozer Iron Co., 17 S.E. 806, 90 Va. 126, 44 Am. St. Rep. 893; Gibbons v. The C. J. Caffrey, 40 Mo. 257; Gen. Brady v. Buckley, 6 Mo. 558; Gibbons v. The Fanny Barker, 40 Mo. 253; Bryan v. The Pride of the West, 12 Mo. 371.

The statute of frauds with reference to an agreement not to be performed within one year after the date of the agreement applies to executory and not executed agreements. And where a contract is entered into which is fully performed by one of the parties within one year, but is not to be performed by the other party within a year, and especially while nothing remains to be done under such a contract except the payment of the consideration thereof which has been fully performed by one party, the statute of frauds does not apply.

27 C. J. 349, 356; Duff v. Snider, 54 Miss. 245; Browne on Statute of Frauds, Sec. 290; Peter v. Compton, 1 Smith's Lead. Cas. 438; Washington v. Soria, 73 Miss. 665; Payson v. West, Walker, 515; Beaman v. Buck, 9 S. & M. 207; Box v. Stanford, 13 S. & M. 93; Bacon v. Catlett, 33 Miss. 269; Rairston v. Jaudon, 42 Miss. 380.

After full performance of an oral agreement, the statute of frauds does not apply.

Fowler v. Austin, 1 How. (Miss.) 156; Hill v. Robeson, 2 S. & M. 541; Cutter v. Powell, 2 Smith's Lead. Cas., 1, and note; 2 Devlin on Deeds, Sec. 1074.

The rule that damages which are uncertain or contingent cannot be recovered does not apply to an uncertainty as to the amount of the damages, but to an uncertainty as to whether any damages at all have been sustained.

Beach v. Johnson, 102 Miss. 419, 59 So. 800, Ann. Cas. 1914 D, 33; 17 C. J. 756.

Percy & Percy, of Greenville, for appellees.

Part performance of the contract does not take it out of the statute of frauds by the unbroken rule in Mississippi.

Fisher v. Kune, 54 Miss. 480; McGuire v. Stevens, 42 Miss. 724; Catlett v. Bacon, 33 Miss. 269; Box v. Stanford, 13 S. & M. 93.

Where the damages claimed are remote and speculative the proper way of raising the point is by motion to strike out.

Treadwell v. Tilles (Ala.), 118 So. 886; 31 Cyc. 299.

It is familiar law that loss of custom in cases of this kind is too remote and speculative.

Deslandes v. Scales (Ala.), 65 So. 393; Winslow Elevator Co. v. Hoffman, 17 L. R. A. (N. S.) 1130; Lanahan v. Heaver, 79 Md. 198, 29 A. 1036; Williston on Contracts, Sec. 1345, page 2402; Taylor's Landlord and Tenant (9 Ed.) 403; 3 Elliott on Contracts, 2133-34; 8 F.2d 357; Vicksburg & Meridian R. R. Co. v. Ragsdale, 46 Miss. 458; Crystal Ice Co. v. Holliday, 106 Miss. 714; Railroad v. Ice, 109 Miss. 43.

OPINION

Cook, J.

This suit grows out of a lease contract, and was instituted by Thomas Pountaine, lessee, against Leon Fletcher and Rosa H. Fletcher, lessors; and from a judgment in favor of the defendants on all counts of the declaration, this appeal was prosecuted. The lease contract upon which the suit is based was executed by and between appellant and appellees on the 15th day of March, 1918, and thereby the appellees leased to the appellant the Cowan Hotel property, in the city of Greenville, for a period of ten years, at a rental of one thousand dollars a month. Section 1 of the lease contract shows that it was a lease of a furnished hotel and all equipment thereunto belonging and therein contained, and the other provisions of the contract upon which the several counts of the declaration are based will be set forth in the statement of the pleadings developing the issues presented thereby. The original declaration was in four counts, but the appellant voluntarily entered a nonsuit as to the fourth count, and, consequently, no further reference will be made thereto. The remaining three counts presented separate and distinct causes of action based upon separate provisions of the contract; and the pleadings, proof, and our conclusion upon these several counts, will be separately stated. Before the pleadings were settled, there were numerous demurrers and motions interposed, and amendments made, but we shall only refer to the pleadings as finally amended and such parts thereof as appear to be necessary to make apparent the issues presented and decided in the court below.

The first count as finally amended sought to recover three thousand two hundred seventy-four dollars and twenty-four cents for provision and supplies alleged to have been turned over to the appellees at the end of the lease, as shown by an inventory filed with, and as a part of the count, the said articles named in such inventory being alleged to be of like kind and nature to articles purchased by the appellant from the appellees at the beginning of the lease, and also set forth in an inventory filed as an exhibit to the declaration; the alleged obligation of the appellees to pay for the articles so delivered to them at the expiration of the lease being based upon section 8 of the lease contract, which reads as follows:

"It is hereby agreed and covenanted that the parties of the first part hereby sell, for invoice prices, the stock of provisions and supplies now on hand in said hotel, including all such articles of that nature as are shown on the inventory for which the party of the second part is to pay cash with the closing of this contract and the parties of the first part agree for themselves, their heirs and assigns, that they will, upon the expiration of this lease, pay the party of the second part in cash for all like articles at an invoice price then to be agreed upon between them and upon their failure to agree, then such valuation shall be arbitrated."

The appellees made a motion to strike the list of articles enumerated and sued for in this first count of the declaration on the ground that the said section 8 of lease contract obligated them to pay for provisions and supplies, and that the articles enumerated were not provisions and supplies. This motion was overruled, and thereupon a plea of the general issue was filed. At the conclusion of the testimony, the jury was peremptorily instructed to find for the defendants, the appellees, on this count.

The provision of the lease contract upon which this count is based obligated the appellant to purchase from appellees all provisions and supplies on hand in the hotel at the time of the execution of the contract, including all such articles of that nature, that is, in the nature of provisions and supplies, as were shown on the inventory of the date of the contract, and likewise obligated the appellees to purchase at the expiration of the lease, all articles of like nature then on hand in the hotel. In this count of the declaration there was set forth an itemized statement of the articles for which recovery was sought, and which were alleged to come within the designation of "provision and supplies," and there was also filed and introduced in evidence the inventory of March 15, 1918, which contained the articles of that nature for which appellant paid the appellees at the time of the...