Richardson v. Snipes

• Decision Date: 24 July 1959
• Citation: 330 S.W.2d 381,46 Tenn.App. 494
• Parties: Gilmer RICHARDSON, d/b/a Interstate Realty Co., Appellant, v. Guy G. SNIPES and Eola C. Snipes, Appellees. James R. HALL et al., Appellants, v. Guy G. SNIPES and Eola C. Snipes, Appellees.
• Court: Tennessee Court of Appeals

Page 381

330 S.W.2d 381

46 Tenn.App. 494

Gilmer RICHARDSON, d/b/a Interstate Realty Co., Appellant, v. Guy G. SNIPES and Eola C. Snipes, Appellees.

James R. HALL et al., Appellants, v. Guy G. SNIPES and Eola C. Snipes, Appellees.

Court of Appeals of Tennessee, Western Section, at Jackson.

July 24, 1959 Certiorari Denied by Supreme Court Dec. 11, 1959.

Livingston, Vineyard & Sherman and John D. Walt, Memphis, for appellants.

Adrian Lowenthal, Memphis, and W. E. Wilroy, Hernando, Miss., for appellees.

BEJACH, Judge.

These consolidated causes involved two separate suits filed in the Chancery Court of Shelby County, viz., that of Gilmer Richardson, d/b/a Interstate Realty Company v. Guy G. Snipes and Eola C. Snipes, No. 59960 R.D., in the Chancery Court, and that of James R. Hall, Eleanor S. Hall, Frank J. Hall, Jr. and Frank J. Hall, Sr., trustee for Sandra E. Hall v. Guy G. Snipes and Eola C. Snipes, No. 60116 R.D., in the Chancery Court. Said suits were tried separately in the lower court, but were consolidated for appeal. Both arise out of the same contract, same being a contract for the sale of real estate executed under date of October 30, 1957. The suit of Gilmer Richardson is for a real estate broker's commission on land owned by defendants, Snipes, which was to have been conveyed as part payment for the land purchased by them from the Halls; and the suit of the Halls is for breach of said contract. The Halls sue for damages for breach of the contract, or in the alternative, for specific performance.

For convenience and simplicity, the parties will be referred to as Richardson, Snipes, and the Halls, except where specific identification of one or more of the individual parties is required.

The contract involved was negotiated by and through the office of Gilmer Richardson, d/b/a Interstate Realty Company, under date of October 30, 1957. It provides for the purchase by the Snipes from the Halls of the 'Josephine Plantation', containing about 1,000 acres in Bolivar County, Mississippi, in part payment for which the Snipes agreed to transfer to the Halls real estate in Memphis, Tennessee identified as No. 3845 Jackson Avenue. Possession was to be given on or before January 1, 1958. The contract contains a clause which is the basis of the controversy in this law suit and disposition of which is determinative of the outcome of same. Said clause is as follows:

'The consummation of this contract is contingent upon the first three hundred feet east of Jackson Avenue of the property located at 3845 Jackson Avenue, Memphis, Tennessee being zoned commercial.'

The facts of the case are practically undisputed, most of them having been stipulated. Pending the appeal, Gilmer Richardson died and the cause, as to him, has been revived, by a consent order in the name of Kathryn Madelyn Richardson, administratrix cum testamento annexo of the estate of Gilmer Richardson, deceased.

The suit of Richardson v. Snipes was filed December 30, 1957 and that of the Halls v. Snipes, February 28, 1958. As stated, both suits grew out of the same contract, and the determinative facts applicable to both suits are the same. Except where separate discussion is necessary, both suits will be discussed together.

In the late summer or early fall of 1957, the Halls employed Richardson for the purpose of selling the 'Josephine Plantation'. Advertisements were run in local newspapers and during the month of October 1957, Snipes answered one of the advertisements. Subsequent negotiations resulted in the signing of the contract dated October 30, 1957. This contract was signed by both Mr. and Mrs. Snipes and by all of the Halls. The 'Josephine Plantation' was to be sold for $140,000, payable in ten annual installments, in addition to conveyance of the Jackson Avenue property belonging to the Snipes; and it was agreed that both the Halls and the Snipes were to pay real estate commissions, each on the property to be conveyed by them. The commission claimed by Richardson from Snipes is $3,375 and it is stipulated that such commission is both fair and reasonable.

After the signing of the contract, the Halls dismissed the manager of the 'Josephine Plantation' and began selling off equipment used thereon. About November 9, 1957, the parties to the contract reached an understanding as to the rice allotment and cotton allotment for the 'Josephine Plantation', and agreed that Snipes might remove certain quail and pheasant pens and fences from the Jackson Avenue property in Memphis. On or about November 14, 1957, Snipes employed competent counsel to have the Jackson Avenue property rezoned commercial; but it was realized by all parties to the contract by the weekend of Thanksgiving Day which was November 28, 1957, that the rezoning of the Jackson Avenue property could not be completed prior to January 1, 1958; whereupon Guy G. Snipes requested Dr. Frank G. Hall, Sr. to waive the rezoning condition. Dr. Hall said he would consider the matter and confer with the other interested parties. Without waiting for a reply from Dr. Hall, however, by registered letter dated December 4, 1957, Guy G. Snipes advised the Halls and Richardson that, because of impossibility of performance of the condition, he considered all parties to the agreement discharged from further liability thereunder, and that he was treating the contract as at an end. By letter dated December 6, 1958, attorneys for Richardson and for the Halls advised Snipes that the condition was solely for the benefit of the Halls and that same was waived. This waiver was repeated by another letter under date of December 12, 1957 sent by registered mail. On the 18th day of December, 1957, Snipes acquired by purchase approximately 4,100 acres of farm land in DeSoto and Tunica Counties, Mississippi at a purchase price of $660,000; and by amended bill in the Richardson case, filed Jan. 21, 1958, it was alleged that the sold purpose of the breach of contract was to avoid the payment of a real estate commission by Snipes and to enable him to purchase the property in DeSoto County and Tunica County, Mississippi. A similar allegation was made by amended bill in the Hall case filed April 19, 1958. In addition to the stipulations of facts filed in these causes, oral proof was heard; and it is apparent from the testimony of Guy G. Snipes that he had been negotiating for the purchase of the DeSoto and Tunica Counties property prior to his letter of December 4, 1957 by which he undertook to cancel the contract here involved.

The Chancellor held that, at and prior to the time of the writing of the letter of December 4, 1957 by which Snipes undertook to cancel the contract, the parties were met by an 'objective impossibility' which prevented the consummation of the contract and that the parties thereto were no longer bound by it. He held that Snipes was within his rights when he cancelled same, that his request for a waiver of the condition in the contract requiring that the Jackson Avenue property in Memphis, Tennessee be zoned commercial, amounted to no more than an offer on his part to perform the contract if said condition was waived, which offer he had a right to withdraw before it was accepted, and that his letter of December 4, 1957, declaring the contract at an end, having been written and delivered prior to the waiver of the condition by the Halls, terminated any liability on the part of Snipes either for commission to Richardson, under the contract, or to the Halls, for specific performance or damages.

Final decrees were entered dismissing both the suit of Richardson for real estate broker's commission, and that of the Halls for breach of the contract of sale. As stated above, the two causes were then, by agreement and by order of the Chancellor consolidated for the purpose of appeal. Both Richardson and the Halls prayed and perfected appeals, and one record covering both causes has been filed in this Court.

Four assignments of error have been filed here. We deem it unnecessary to copy these assignments into this opinion, or to discuss them separately. They present adequately the contentions of appellants; and, in our opinion, both appeals must stand or fall, depending on whether the Chancellor was right or wrong in his ruling that Snipes was released because of 'objective impossibility' and that the waiver by the Halls of the condition requiring commercial zoning of the Jackson Avenue property came too late.

In our opinion, the learned Chancellor was clearly in error. The condition requiring commercial zoning of the Jackson Avenue property in Memphis was obviously and exclusively for the benefit of the Halls; and, when they waived that condition prior to the time for performance of the contract, which was to be on or before January 1, 1958, the situation was, in legal contemplation, the same as if such condition had never been in the contract. The contract was a valid contract, the consideration for which was the reciprocal promises of the parties thereto. The fact that the obligation to perform, on the part of the Halls, was conditional, is immaterial. We quote from Williston on Contracts, sec. 103f, as follows:

'A conditional promise is sufficient consideration. The performance of such a promise does not necessarily involve either detriment or benefit, since the condition upon which any action of the promisor is to take place may not happen. But the possibility that the condition may happen, involves a chance of detriment which is sufficient to make the promise valid consideration.'

From the opinion of the Supreme Court of Tennessee in Dark Tobacco Growers' Coop. Ass'n v. Mason, 150 Tenn. 228, 250-251, 263 S.W. 60, 67, written by Mr. Justice Hall, we quote as follows:

'It is next insisted that the contract is unilateral and lacks mutuality.

'In Texas Seed Co. v. Chicago Co. (Tex.Civ.App.), 187 S.W. 747, the court said:

"Generally, there is mutuality of obligation where both parties...