Sunflower Bank v. Pitts

• Citation: 66 So. 810,108 Miss. 380
• Decision Date: 21 December 1914
• Docket Number: 16616
• Court: United States State Supreme Court of Mississippi
• Parties: SUNFLOWER BANK v. PITTS

66 So. 810

108 Miss. 380

SUNFLOWER BANK v. PITTS

No. 16616

Supreme Court of Mississippi

December 21, 1914

APPEAL from the circuit court of Sunflower county. HON. MONROE MCCLURG, Judge.

Suit by W. T. Pitts, against the Sunflower Bank. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

J Holmes Baker and Campbell & Cashin, for appellant.

Moody &amp Handy, for appellee.

OPINION

COOK, J.

W. T Pitts sued the Sunflower Bank in the circuit court of Sunflower county and obtained a judgment for two thousand, five hundred dollars. From this judgment this appeal is prosecuted.

The declaration is as follows:

"State of Mississippi, Sunflower County.

"In the Circuit Court thereof.

"W. T. Pitts v. Sunflower Bank. No. .

"W. T. Pitts, a resident of Sunflower county, Mississippi, by Moody & Percy, his attorneys, complains of the Sunflower Bank, a corporation incorporated under the laws of the state of Mississippi, with its domicile and chief place of business in the county of Sunflower of said state, and says:

"I. That on or about the 22d day of July, 1910, he, the plaintiff, and the defendant entered into a certain contract in writing for the sale of certain lands described therein, in which contract it was, among other things, provided that if the defendant should sell the lands described in said contract without the seeming efforts of the plaintiff, during the said contract, defendant agreed to pay plaintiff a commission of five per cent. of the amount of such sale. A copy of this contract is filed herewith, marked 'Exhibit A,' and asked to be taken and treated as part hereof. This contract was entered into for a valuable consideration.

"II. Plaintiff avers and charges that after the execution of said contract, and while same was in full force and effect, the defendant, without any seeming effort on the part of plaintiff sold said land to various parties, and received therefor a sum aggregating more than thirty-eight thousand dollars, and in accordance with the provision of said contract, the defendant became indebted and promised to pay to the plaintiff a commission of five per cent. on the amount of said sale, amounting to the sum of one thousand nine hundred dollars; and being so indebted, it became and was the duty of the defendant to pay to the plaintiff the said sum of one thousand nine hundred dollars when said sale had been perfected, and which sale, plaintiff avers, was perfected and closed many months ago. Yet although the defendant is indebted to the plaintiff in the said sum of money, it has not paid the same to the plaintiff, although often thereunto requested so to do; to the damage of plaintiff of the sum of two thousand five hundred dollars, for which he sues and asks judgment."

"Exhibit A to Plaintiff's Declaration.

"Office of W. T. Pitts, Real Estate, Indianola, Miss.

"List of Lands of Sunflower Bank, Indianola, Miss.

"This contract, made and entered into on this the 22d day of July, 1910, between Sunflower Bank of Indianola, Mississippi, party of the first part, and W. T. Pitts, of Indianola, Sunflower county, Mississippi, party of the second part, and by the terms of which it is agreed by and between the parties hereto that the party of the first part hereby agrees to list for sale with the party of the second part, as his agent, the following described property situate in the county of Sunflower and state of Mississippi, to wit: West half and southeast quarter of section twenty-five, township nineteen, range six west, four hundred and eighty acres, also the southeast quarter of section twenty-six, and the south half of the northeast quarter of section twenty-six, and the south half of the southwest quarter section twenty-six, township nineteen, range six west, three hundred and twenty acres; also, lot one and the east half of lot six, all of lot three, and the north half of lots four and seven, and the west half of lot five, section thirty-five township nineteen, range six west; also, the north half of lots one and two, and the south half of lot two, section thirty-four, township nineteen, range six west, all containing one thousand, two hundred and twenty-four acres.

"It is agreed and understood by and between the parties to this contract that this land shall not be offered for sale by either party for over or under thirty dollars per acre, and that if the party of the first part sells this land without the seeming efforts of the party of the second part during this contract, party of the first part is to pay the party of the second part a commission of five per cent. of the amount of the sale. If party of the second part sells this land for party of the first part, he is to receive a commission of ten per cent. of the amount of sale.

"It is further agreed, by and between the parties hereto, the the said party of the second part is authorized to sell said property at thirty dollars per acre, and the said party of the second part, as agent of the party of the first part, shall have the exclusive right to sell said property at and for the price above mentioned, and the consideration for this contract is one dollar cash this day paid to me by the party of the second part, the receipt of which is hereby acknowledged.

"It is further agreed, by and between the parties to this contract, that in the event the said party of the second part shall procure a purchaser for the above-described property at and for a price not less than the price per acre above mentioned, the party of the first part agrees, when called upon during the existence of this contract, to make a warranty deed to said property to any party named by the party of the second part and to pay to the party of the second part ten per cent. of the net proceeds of said sale if the same be sold at and for the price per acre above mentioned, and all sums over and above the said sum per acre above mentioned that said property may be sold for as his commissions in obtaining a purchaser.

"This contract shall be in full force and effect from and after the date first above written until revoked by sixty days written notice by either party hereto.

"Witness our signatures this, the 22d day of July, A. D. 1910."

To this declaration defendant filed the plea of general issue, giving notice thereunder that evidence would be offered to prove:

"That after the alleged execution of the contract sued on, and before any sale of the lands therein described had been effected or negotiated by either party thereto, the plaintiff and defendant entered into a new agreement, for the purpose of rescinding the contract sued on, and discharging the defendant from any obligatory effect thereof, to the effect that defendant agreed to reimburse the plaintiff the expenses that he had incurred in seeking to effect a sale of said land, in pursuance of the contract sued on, and that the defendant should be released from any liability under the contract sued on, and that, by virtue of defendant's said agreement to reimburse the...