Smith v. Cauthen

• Decision Date: 03 April 1911
• Citation: 98 Miss. 746,54 So. 844
• Court: Mississippi Supreme Court
• Parties: GARNER SMITH v. A. H. CAUTHEN

54 So. 844

98 Miss. 746

GARNER SMITH v. A. H. CAUTHEN

Supreme Court of Mississippi

April 3, 1911

October 1910

APPEAL from the circuit court of Madison county, HON.W. A. HENRY Judge.

Action by A. H. Cauthen against Garner Smith. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

O. A Luckett, E. J. Leonard, Robert Powell, and Flowers, Fletcher & Whitfield, for appellant.

Reid & Foote and H. B. Greaves, for appellee.

Argued orally by R. Powell and R. N. Fletcher, for appellant and W. M. Reid and H. B. Greaves, for appellee.

OPINION

SMITH, J.

The appellant, Smith, executed the following option: "Canton, Mississippi, August 17, 1909. This is to certify that I have optioned to A. H. Cauthen, in consideration of one dollar and his listing and advertising my property for sale, the following described real estate, to-wit: W 1/2 lot 14, lots 16, 18, 20, 22, on the north side North street, and east of I. C. R. R. track, and being all the property I own N. of N. St., E. of R. R., and includes my brick plant, with all equipment as it now stands for the manufacturing of brick, and containing about 8 acres, in Canton, Miss. The above does not include live stock and wagons, also 600,000 brick, wood amounting to $ 500.00, and coal amounting to $ 100.00. The said A. H. Cauthen, or his assigns, shall have the exclusive right to purchase or sell the said property for ($ 8,000.00) eight thousand dollars, net to me, on the following terms: One-half cash, the balance due in 6 mos. after date of sale of property [54 So. 845] at 8% per annum. In event of sale or purchase of same, I agree to allow a commission of no per cent. The period of this option shall be to Dec. 24th, 1909, months, or thereafter until days' notice is given in writing of the withdrawal of same. And I further agree to furnish an abstract of title and convey unto purchaser by warranty deed, upon consideration of the terms herein stipulated. Dated this 17th day of August, A. D. 1909. Garner J. Smith."

After the execution of this option, the appellee advertised the brick plant in question for sale. Later on he advised appellant that he could not get eight thousand dollars for the plant, but could get seven thousand dollars, and urged him to take this amount and to give him a fee of two hundred dollars or three hundred dollars for closing the deal. This offer was not accepted by the appellant, and thereafter appellee advised appellant that he had resold the property for eight thousand dollars, but would make nothing on the deal, and tendered him a deed to be signed; but there arose some misunderstanding about what brick were to be included in the sale, and appellant refused to sign the deed. Thereafter appellee brought suit for breach of contract, for the sum of fifteen hundred dollars damages, alleging that he had resold the property for nine thousand five hundred dollars. From a judgment for the amount sued for, the defendant appeals, alleging as errors, among others, the granting of instructions Nos. 2 and 4, which are as follows:

"No 2. If you believe from the evidence that Cauthen paid a valuable consideration either in money or personal services to Garner...