Swope v. Watson

• Decision Date: 20 October 1924
• Docket Number: 24320
• Citation: 101 So. 488,136 Miss. 348
• Court: Mississippi Supreme Court
• Parties: SWOPE et al. v. WATSON

101 So. 488

136 Miss. 348

SWOPE et al. v. WATSON

No. 24320

Supreme Court of Mississippi

October 20, 1924

Division A

1 EQUITY. Bill alleging cause of action demurrable, where exhibit shows no cause of action.

Where written contract on which suit is based, filed as exhibit shows that there is no cause of action, the bill is demurrable, though averments conflict with exhibit and allege cause of action.

2 EQUITY. Unsigned contract filed as exhibit rendered bill demurrable, though allegations alone stated cause of action.

Where contract to execute lease on which suit was based was riot signed by defendants, the bill was demurrable, though allegations thereof, standing without exhibit, would have stated cause of action.

HON. E N. THOMAS, Chancellor.

APPEAL from chancery court of Sunflower county, HON. E. N. THOMAS, Chancellor.

Suit by W. M. Watson against I. R. Swope and others. From order overruling demurrer to bill, defendants appeal. Reversed and remanded.

Decree reversed and case remanded. Suggestion of error overruled.

Ward Allen, for appellants.

In considering this bill, see the rule announced in McNeill v. Lee, 79 Miss. 455, 30 So. 821, to the effect that allegations of complainant's bill which are not in conformity with the exhibits cannot be considered by the court on demurrer. The facts will be taken to be in conformity to the exhibits. The exhibits to the bill in question show a written lease contract between appellants and one E. H. Knight signed by E. H. Knight and lines prepared for the signature of appellants, but never signed by appellants. An acknowledgment was prepared for this contract to be executed by both appellants and the said Knight but was never executed by anyone but Knight. Exhibit B is a copy of the promissory note evidencing the rent to be paid under said contract, said note being in the large sum of one thousand six hundred and twenty-five dollars. Exhibit C. is an assignment by Knight to appellee of the written contract, a copy of which contract is shown as Exhibit A.

It will be readily noted by the court that the assignment, a copy of which is shown as Exhibit C. to the bill, assigns to appellee only the written contract, a copy of which is shown as Exhibit A, reciting that this contract has been recorded in the chancery clerk's office of Sunflower county, Mississippi, and making special reference to said contract. This assignment does not in any way attempt to assign to appellee any oral contract which Knight may have made with appellants, but confines itself to the unsigned, written contract. Under the rule announced in McNeill v. Lee, supra, we must confine ourselves to a consideration of whatever rights appellee may have taken by the assignment of this unsigned written contract, and under allegations of the bill which are in conformity to these exhibits, but we must exclude from our consideration the large number of random allegations which appellee has embodied in his bill and which are not in conformity with these exhibits.

Our position is that while an oral contract for the lease of land for one year is without the statute of frauds, there is yet a class of cases in which it is apparent that there is no contract until the agreement has been reduced to writing and signed, and we contend that it is patent from appellee's bill that the contract under consideration comes squarely within this class. 13 C. J. 303, par. 124.

Our search has not revealed a Mississippi case in point, but see the leading case of Mississippi & Dominion Steamship Co. v. Swift Company, 41 Am. St. Rep. 545, and the annotations. See, also, Hodges v. Sublett, reported in 91 Ala. 588, 8 So. 800; Chinnock v. Ely, 4 De Gex, J. & S. 628; Ridgeway v. Wharton, 6 H. L. Cas. 238; Morrell v. Tehama M. & M. Company, 10 Nev. 135, 6 R. C. L. 619.

The essence of our case is, however, that the exhibits to the bill of complaint show conclusively that appellee is relying upon the assignment to him of an unsigned written contract, and that this puts the case forever within the rule announced. He paid two hundred and fifty dollars for a written assignment of a recorded but unsigned contract, and even went to the trouble and expense of having his written assignment recorded. All this appears from the exhibits and allegations of his bill to the contrary and to the effect that he is relying upon an oral contract cannot be considered by this court under the rule announced.

Floyd & Easterling, for appellee.

The court below overruled appellant's demurrer and required them to answer. No authority is needed to show that every fact and every inference to be deduced therefrom where well pleaded is to be taken as true upon the hearing as against a demurrer.

Now we submit that a careful consideration of the bill will show that the bill and the exhibits thereto are not contradictory of each other, but are in harmony; that the bill explains the nature of the exhibits. We further submit that when the bill is read in connection with the exhibits, sufficient facts are averred to show a perfectly valid contract between E. H. Knight, appellee's assignor, and the appellants for the lease of the land in question for one year. The bill avers that every detail of the contract was agreed to; that the minds of the contracting parties met upon every proposition.

A contract for one year's lease of land need not have been in writing to be legal and valid. Reducing it to writing merely preserved the evidence of the true understanding between the parties. The writing was to be in this case, as shown by the pleading, a memorandum of the agreement, but even if the contract was of the kind required to be in writing, if adopted by the other parties, the same would be binding upon the parties adopting such contract. We submit that this is the law in regard to assumption of indebtedness upon land by accepting a deed. The vendee becomes bound by the deed and by any undertaking in the deed, though he does not sign the deed at all, and the same is true of any other contract where adopted by one party and signed by the other.

Now we take it that it must be admitted that if the lease contract is valid between appellants and the lessee, Knight, appellee is entitled to recover for he stands in the shoes of Knight and if the contract was valid with Knight it is valid as to him.

The exhibits do not contradict the averments of the bill. But, on the contrary the averments of the bill show a valid and binding contract and explain why the same was not signed by appellants. But we submit that it does show sufficient facts upon which to the complaint. We submit that it shows that by adopting, and causing the lessee, Knight, to sign the same that appellants ratified, approved, and adopted the contract reduced to writing by attorney Searcy, and became bound thereby to the same extent and in the same way as though their signature manual had been placed upon it. So we say that the averments of the bill and the exhibits taken together are in perfect harmony; that they supplement each other and that taken together they constitute a cause of action in ...