Taylor v. Barbour

• Decision Date: 09 December 1907
• Docket Number: 12837
• Citation: 90 Miss. 888,44 So. 988
• Court: Mississippi Supreme Court
• Parties: JOHN W. TAYLOR v. CHRISTOPHER C. BARBOUR ET AL

44 So. 988

90 Miss. 888

JOHN W. TAYLOR v. CHRISTOPHER C. BARBOUR ET AL

No. 12837

Supreme Court of Mississippi

December 9, 1907

FROM the circuit court of Alcorn county, HON. EUGENE O. SYKES Judge.

Barbour and others, partners, doing business under the firm name Barbour & Company, appellees, were the plaintiffs in the court below, and Taylor, the appellant, defendant there. From a judgment in plaintiffs' favor the defendant appealed to the supreme court.

The plaintiffs, Barbour & Company, instituted two different suits before a justice of the peace against appellant; one to recover $ 60 as commission for sale by plaintiffs, as brokers, of $ 24,000 of Corinth Waterworks bonds, the other to recover $ 125, as commission for sale by plaintiffs, as brokers, of $ 70,000 of Gulf Compress bonds. Judgments by default were rendered in the justice's court in the two cases against the defendant, Taylor, from which he appealed to the circuit court, where the two cases were consolidated.

The contract, the basis of the suits, is found in certain letters written by Taylor to Barbour & Company, which, omitting formal parts, are as follows:

"Yours of the 15th received. The party with whom we thought we had placed the bonds did not take them, so you may still try to place them. If we should place them before you do, we will allow you the commission on them just the same as if you had sold them, which we understood to be one-eighth of one per cent, if we are not mistaken. There should be no trouble in placing these bonds, so please make your best endeavors to get the very best price possible. We want to be in position to make sale of them, if we can, although you will have them for sale yourself. If you get an offer, please advise us at once."

"Yours Dec. 1st rec'd. We would not want to discount the Gulf Compress Co. notes any at all, as they are A No. 1 securities. They are amply secured by the property, and in addition I am perfectly willing to indorse every one of the notes. The Gulf Compress Co. are getting control of most of the presses in the South, and we regard the paper as gilt-edge. We are perfectly willing to pay you your brokerage of one-fourth of one per cent, and might allow a small discount on the notes, but to make it net party eight per cent would require a loss of about $ 15,000."

"Inclosed please find check for $ 50 on a/c expenses entailed by you in assisting me to dispose of the Gulf Compress Co. notes. I will send you check for balance soon, as we are using all our funds now. I do not see why you looked at this matter the way you did, as you did not have any option on the notes. I wish to do what is right with you, however. I have at present $ 100,000 Como Compress Co. bonds for sale. Bonds bear six per cent and are due in twenty years. If you have any customers who would be interested, advise me, and maybe you can place some of them for me."

The defendant offered no evidence. Under peremptory instruction the jury returned a verdict in plaintiffs' favor for $ 185, the total of the two demands against defendant, together with interest.

Case reversed and remanded.

J. M Boone, for appellant.

The sole issue here is, whether the contract sued on was unilateral and supported by no consideration moving from appellees to appellant. The case is controlled by Kolb v Land Company, 74 Miss. 568. It will be seen that Barbour & Company, the appellees, admitted that they did not sell the bonds or the notes; and there was no evidence showing that they assisted in any way in effecting the real sale of the bonds or the notes. They based their right to recover, upon the statement of appellant that he would pay them their commission whether they sold the bonds and notes or not. Appellees paid no consideration, entered into no correlative obligation, and, if they had taken no steps whatever in executing the purposes of agency, they would have incurred no liability to appellant; and appellant could not have sued them for nonperformance of the contract. Appellees did not present any purchaser, ready and willing to buy. The circumstances here are practically the same as in the case of Kolb v. Land Company, supra. See also Stensguard v Smith, 43 Minn. 11, 4 Am. & Eng. Ency. of Law (2d ed.), 967; Sibbald v. Bethlehem Iron Co., 38 A. 441.

The court below seemed to be impressed with the idea that the appellant was liable to appellees because he promised to pay the commissions whether the appellees effected the sale of the bonds and notes or not. But such promise was clearly without any consideration, and no authority can be found to authorize its enforcement. Lawson on Contracts, sec. 100; Hendricks v. Robertson, 56 Miss. 699.

The lower court permitted recovery on the express contract of appellant to pay appellees, whether appellees sold the bonds and notes or not. Recovery was not permitted on quantum meruit, nor on a claim for expenses incurred, but, as stated, on express contract, the court holding that appellees should be allowed to recover for services not rendered, by reason of the fact that appellant had promised appellees that he would pay them commissions whether they sold the bonds or not.

We call the court's attention to the fact that appellant according to the testimony of appellees, never...