Rast v. Sorrell

• Decision Date: 06 March 1961
• Docket Number: No. 41730,41730
• Citation: 240 Miss. 333,127 So.2d 435
• Parties: George L. RAST v. Bernard D. SORRELL.
• Court: Mississippi Supreme Court

Page 435

127 So.2d 435

240 Miss. 333

George L. RAST v. Bernard D. SORRELL.

No. 41730.

Supreme Court of Mississippi.

March 6, 1961.

Cunningham & Cunningham, Booneville, for appellant.

W. C. Sweat, Jr., Corinth, for appellee.

McGEHEE, Chief Justice.

On March 26, 1959, the appellee, Bernard D. Sorrell, a then justice of the peace, was the owner and operator of a poolroom and its equipment in the City of Corinth, Mississippi, which he was operating under a privilege tax license dated June 30, 1958, and expiring June 30, 1959. The appellant, George L. Rast, approached the appellee on that day and expressed a desire to purchase the said poolroom and its equipment. He had formerly negotiated with the appellee in an effort to purchase said poolroom and its equipment, but the former negotiations were unsuccessful. The appellee wanted the sum of $4,000 as a consideration for the sale of the said business and property but he and the appellant finally agreed upon a purchase price of $3,500, the sum of $500 of which was paid in cash on that day, and a bill of sale of the property was prepared in the presence of both the appellant and the appellee, and which bill of sale was to be executed and delivered when the mayor and board of aldermen of the city had approved the application of the appellant at the next regular meeting of the said body for a privilege tax license to operate the poolroom in the City of Corinth.

It was also agreed that the remaining $3,000 of the consideration would be paid when the municipal authorities had approved the application of the appellant for a privilege tax license to engage in the business in his own right. The application for the permit was duly executed and sworn to by the appellant on the said 26th day of March 1959 and thereupon filed with the clerk of the municipality.

The testimony on behalf of the appellee tended to show that the title of the property was to pass under the bill of sale, which was not to be delivered as aforesaid until the municipal authorities had approved the appellant's application for the privilege tax license, and when the appellant had thereupon paid the remaining $3,000 of the consideration.

The appellee testified that the property still belonged to him pending the compliance with the foregoing conditions of the sale, but it is undisputed that he placed the appellant in possession of the pool tables and other equipment and the place of business on the said 26th day of March 1959, and with the right on the part of the appellant to receive the proceeds of the business pending the said further negotiations, as a consideration for his operating the business under the privilege tax license issued in favor of the Corinth Recreation Club on June 30, 1958. Consequently, the appellant entered into possession and operation of the said property and business on the said 26th day of March 1959, and continued to so operate the said business until April 6, 1959, and at which time the municipal authorities had approved his application for a privilege license in his own right, and at which time the appellee tendered to the appellant the bill of sale and requested the payment of the remaining $3,000 of the purchase price.

The appellant declined to accept the bill of sale or to pay the remaining $3,000 of the purchase price, and according to the testimony of the appellee the appellant said, 'his health was bad, the dust in the poolroom wasn't good for it, his wife didn't approve and he wouldn't go through with it'; that the appellant then said to the appellee, 'Here are the keys', which the appellee said he had to accept or leave the place of business open.

The appellee then set about to reduce his damages by a sale of the property to the best buyer available, and he, with the aid of the appellant, was finally able to sell the same to a third party for the sum of $1,000. The appellee brought this suit for the remaining $2,000 of the promised purchase price and the jury, under proper instructions, rendered a verdict for the appellee in the said amount.

The appellant on this appeal claims that he is relieved of any liability for the payment of this $2,000 for the reason that under Section 9696-214, the privilege tax license under which he was to operate and did operate the business during the period of ten days beginning on March 26, 1959, was a license which constituted a personal privilege to the Corinth Recreation Club; that the license was not transferable and that the appellee participated with the appellant in operating the business for the period of ten days under the said existing license, and that he induced the appellant to thus violate the law.

But Section 9696-228 prescribes the penalty for anyone violating any provision of the chapter of the code on privilege tax license and makes it a misdemeanor and subjects the violator to a fine of not more than $500, or imprisonment in the county jail not to exceed six months, or by both such fine and imprisonment. However, it is to be noted that neither Sections 9696-214 nor 9696-228 declare that a contract based upon an agreement to violate the law shall be void.

Section 9696-228, Code of 1942, as amended, relates to the penalties imposed upon any person violating any of the provisions of the chapter devoted to local privilege taxes, and since this section contains no provision such as was contained in Section 3401, Code of 1892, declaring null and void contracts made with any person who had failed to pay the privilege tax required by law has been construed in the case of Levinson v. Cox, 127 Miss. 250, 90 So. 1, as follows:

'Under section 3401, Code of 1892, and prior to the amendment of that section by section 3894, Code of 1906, all contracts made with any person who had failed to pay the privilege tax required by law for carrying on the business...