Shell Petroleum Corporation v. Yandell

• Citation: 172 Miss. 55,158 So. 787
• Decision Date: 28 January 1935
• Docket Number: 31505
• Court: Mississippi Supreme Court
• Parties: SHELL PETROLEUM CORPORATION v. YANDELL

158 So. 787

172 Miss. 55

SHELL PETROLEUM CORPORATION v. YANDELL

No. 31505

Supreme Court of Mississippi

January 28, 1935

Division B

1 ASSIGNMENTS.

Parol and written equitable assignments are of equal validity, and any order, writing, or act which makes an appropriation of a debt or funds amounts to an "equitable assignment" thereof.

2 ASSIGNMENTS.

Open account may, while in suit, be assigned by oral agreement upon sufficient consideration, so as to pass equitable title to assignee.

3. LANDLORD AND TENANT.

In landlord's action against sublessee for rent, sublessee could not claim lack of privity of contract where bill and evidence showed complete equitable assignment of lessee's interest to landlord.

4. APPEAL AND ERROR.

Ground upon which case is based cannot be shifted on appeal, but reasons for ground can be shifted.

5. APPEAL AND ERROR.

Party who makes mistake in trial court as to law of his case is not estopped on appeal from invoking true legal principles.

6. APPEAL AND ERROR.

On appeal from judgment for landlord against sublessee, landlord held not estopped to rely on equitable assignment on ground that theory on which cause was tried and on which, it was briefed in Supreme Court was merger and subrogation, where at trial and on appeal landlord maintained that he had succeeded to rights of lessee, but gave different reasons for his position.

7 EQUITY.

Nonjoinder of necessary party may be reached by demurrer, provided absence appears on face of bill, but, if absence does not so appear, absence must be shown by plea or answers of defendant, and, unless nonjoinder is a matter indispensably essential, it must be raised in trial court to be reviewed on appeal.

8. LANDLORD AND TENANT.

Landlord held not precluded from recovering rent against sublessee on ground that lessee's assignee was not made party, where it did not appear what assignee's interest in lease was, and lessee's assignment was not admitted in evidence.

9. LANDLORD AND TENANT.

Sublessee of filling station could not defeat plaintiff's recovery of rent on ground that lot on which station was located was owned by plaintiff's grandfather, where plaintiff was in possession and control of lot as landlord and lessee and sublessee recognized plaintiff's right to lease premises.

10. LANDLORD AND TENANT.

Landlord's title cannot be disputed by tenant or subtenant.

11. EQUITY.

New parties complainant may be added at any time.

12. LANDLORD AND TENANT.

Landlord held not precluded from recovering rent from sublessee because of failure to notify sublessee of lessee's default, where sublessee had notice of lessee's default and sublessee was not prejudiced by failure to give notice.

13. LANDLORD AND TENANT.

Where lessee of tilling station agreed to pay forty dollars per month for five years and sublessee agreed to pay as rent one cent per gallon of gasoline sold, evidence of amount of gasoline sold for ten months held to form sufficient basis for calculation of damages in lessor's suit for rent against sublessee.

14. CONTRACTS.

Where contract is continued for sufficient portion of time to show that party seeking damages for breach thereof would derive reasonable net amount from earnings, there is sufficient certainty to form basis for recovery.

15. DAMAGES.

Damages for breach of contract are such as parties may hare reasonably expected to follow from breach, and damages are "speculative" when cause is uncertain, and not when amount is uncertain.

HON. R. E. JACKSON, Chancellor.

APPEAL from chancery court of Leflore County HON. R. E. JACKSON, Chancellor.

Bill by W. M. Yandell, Jr., against the Shell Petroleum Corporation. From a decree for complainant, defendant appeals. Affirmed.

Affirmed.

Gardner, Denman & Gardner and Frank E. Everett, Jr., all of Greenwood, for appellant.

The mere approval of a sublease contract, which is true in case at bar, creates no privity of contract between such parties.

Road Improvement Dist. v. Mobley Constr. Co., 48 A.L.R. 456; Huntsville Ry. Co. v. Corpening, 12 So. 295; Jones v. Miss. Farms Co., 76 So. 880; Wood v. Brewer, 66 Ala. 570; Alexander v. Ala. Western R. Co., 60 So. 295; Police Jury v. Alexandria Gravel Co., 83 So. 316; Land Title Guaranty Co. v. Lynchburg Foundry Co., 80 So. 142.

Appellee seeks to have the court to make a contract between appellee and appellant to take the place of the contract entered into at a prior date and having a different consideration between appellee and John E. Fant, without any request or prayer for reformation of said contract.

Goff v. Jacobs, 146 Miss. 817; Martin v. Partee, 121 Miss. 482; Sutton v. Cannon, 135 Miss. 368; Pieri v. Sevier, 145 So. 97; Bradley v. Howell, 161 Miss. 352.

In this case there were two complainants who have no sort of community of interest and whose rights are separate and apart and who made separate contracts, which contracts were for different considerations and for different amounts and are entirely separate.

47 C. J. 54, sec. 110; Miss. Digest 365, sec. 85.

A misjoinder of complainants, if it appear on the face of the bill, may be taken advantage of by demurrer; otherwise, it should be pleaded.

Harding v. Cobb, 47 Miss. 599; Champlin v. McLeod, 53 Miss. 484; Cook v. Ligon, 54 Miss. 652; 3 Miss. Digest 365, sec. 85; Yates v. Council, 137 Miss. 381.

The decree is based upon damages so indefinite and uncertain that it is only an estimate or speculation.

Y. & M. V. Railroad Co. v. Ragsdale, 46 Miss. 458; Crystal Ice Co. v. Holliday, 64 So. 658; Y. & M. V. R. R. Co. v. Consumers Ice & Power Co., 109 Miss. 47; Young v. Cureton, 6 So. 352; Jackson v. Doll, 33 So. 207; Southern Railway v. Coleman, 44 So. 837; Dickerson v. Finely, 48 So. 548; Bromberg v. Eugenotto Const. Co., 50 So. 314; Long v. Kaufman Co., 55 So. 348.

Fant had no interest in this suit whatever either as a claim against Shell or as a debt owing to Yandell, and consequently has nothing to assign.

There is not only a misjoinder of Fant who has no interest which was properly raised by demurrer, but there is a nonjoinder of Adams who acquired all of Fant's rights by assignment and consequently is an essential party. There is no equitable assignment of any sort from Adams to Yandell by joinder or any other means, and Adams is the only person to whom Shell might be responsible, if at all.

An essential element of an equitable assignment is that it must be based on a valuable consideration moving from the assignee.

Hinkle Iron Co. v. Kohn, 128 N.E. 113, 5 C. J. 909.

The test of an equitable assignment is an inquiry whether or not it makes an appropriation of the fund, so that the debtor would be justified in paying the debt or the assigned part to the person claiming to be the assignee.

5 C. J. 909.

A party complainant can have relief only on the case made out by his bill of complaint, and--parties must therefore recover or defend upon the issues which they have respectively presented in their pleadings, or not at all.

Griffith's Chancery Practice, secs. 30, 58, 166 and 565.

Alfred Stoner, of Greenwood, for appellee.

It should be remembered that the complainant sued all of the parties that he knew in the transaction. He leased the property to Mr. Fant and on the very same day he approved, ratified and entered into the sub-lease to the Shell Petroleum Corporation. Complainant knew of no other parties to the transaction. Of course, Mr. Fant might have been made a party defendant, but it makes no difference in equity whether he appears in the case as plaintiff or defendant so long as he is a party.

Griffith's Chancery, sections 138, 615.

Mr. Fant was only a nominal party and yet in equity, he was entitled to have his liability to Yandell discharged pro tanto. Of course, Yandell could not have sued the Shell Petroleum Corporation directly because there was no privity of contract, but we confidently submit that in equity could reach the Shell Corporation through Fant.

Allen v. Grenada Bank, 155 Miss. 91, 124 So. 69; Wilczinski v. Smith, 110 Miss. 251, 70 So. 347; 21 C. J. 666, 667, 668.

On appeal misjoinder or nonjoinder of parties cannot be taken advantage of in the absence of proper plea seasonably filed.

Payne v. Stevens, 125 Miss. 583, 88 So. 165; Campbell v. Farmer's Bank, 127 Miss. 668, 90 So. 436; Sec. 515, Code 1930; Aven v. Singleton, 132 Miss. 256, 96 So. 165; Griffith's Chancery Practice, sec. 147.

Adams is out because the law puts him out, and therefore, Yandell, Fant and the Shell Corporation are all of the parties that the law required to be joined.

An open account may, whilst in suit, be assigned by an oral agreement, upon a sufficient consideration, so as to pass an equitable title to the assignee.

Pass v. McRea, Coffman & Co., 36 Miss. 143; 5 C. J. 909.

It is no objection to a decree that it is nominally in favor of one defendant against another, where it is substantially in favor of plaintiff.

21 C. J. 669, 670.

OPINION

Anderson, J.

Appellee filed his bill in the chancery court of Leflore county against appellant to recover the balance of rental due him by John E. Fant (who joined appellee in the bill) under a lease contract theretofore entered into by appellee and Fant by which appellee leased to Fant for a term of five years what is commonly known as a filling station in the city of Greenwood, at a monthly rental of forty dollars. The bill charged that appellant had become liable therefor by virtue of the terms of a sublease of the filling station by Fant to appellant, and the dealings of all the parties under the two leases, against which liability appellee offered to credit the balance due on an indebtedness he was due appellant of three hundred forty-two dollars with...