Thurman v. Pointer

• Decision Date: 03 February 1890
• Citation: 7 So. 215,67 Miss. 297
• Court: Mississippi Supreme Court
• Parties: J. P. THURMAN ET AL. v. MONROE POINTER

7 So. 215

67 Miss. 297

J. P. THURMAN ET AL. v. MONROE POINTER

Supreme Court of Mississippi

February 3, 1890

FROM the chancery court of Tunica county, HON. W. R. TRIGG Chancellor.

The appellee, Pointer, owned a valuable plantation in Tunica county, Mississippi, and in 1886, leased it to C. A. Cox, for the three following years, but reserved the right to cancel the lease as to 1888 and 1889, by giving the lessee notice on or by November 15, 1887. After this he authorized A. J Martin, of Memphis, Tenn., to act as his agent until November 14, 1887, to sell the plantation for $ 25,000, of which he required that $ 5000 should be paid cash. On said 14th of November, 1887, as authorized, said Martin, in the name of his principal, made a valid contract in writing with appellant, J. P. Thurman, for himself and son, by which they became purchasers of the plantation on the terms above stated. Referring to the payments and the possession of the land, this contract contains the following language: "$ 5000 to be paid cash on the 1st of January, 1888, when possession of the place shall be given to me."

The contract closed with this language: "provided title is found good, and taxes paid up to 1st of January, 1888."

About mid-day on the 15th of November, 1887, Pointer, who was then in Memphis, was informed of the contract of sale of the plantation by his said agent. Cox resided on the plantation thirty-three miles south of Memphis, only a mile and a half from Hollywood, a station on the railroad. A regular passenger train left Memphis on this road at 4.45 in the afternoon of each day, arriving at Hollywood at 5.59, all of which was known to Pointer, and he knew where Cox was, for he had left him on the place that day, having gone to Memphis on the morning train. Pointer, therefore, had ample time and opportunity to cancel the lease of Cox on that day, as was his right. But he neglected to cancel it, and Cox remained on the plantation, his lease for the years 1888 and 1889 having become absolute.

Prior to making said contract of purchase, Thurman knew that Cox was in possession under said lease. On November 18, 1887 Pointer showed Thurman the written lease, and agreed to carry out the contract of sale if Thurman would accept the plantation with the lease. Thurman declined this and insisted that the lease should be annulled. On the 21st of November Thurman & Son wrote Pointer that they had caused the title to be examined, that it was satisfactory, and that on January l 1888, they would be prepared to make the cash payment and execute all proper papers, and would expect him to comply with his part of the agreement.

To this Pointer answered that he would make no deed to the property unless Cox was satisfied.

Thurman & Son replied by letter that they demanded to be put into possession January 1, 1888, freed From the Cox lease.

On December 31, 1887 [January 1, being Sunday], the parties met at Memphis, and Thurman & Son tendered to Pointer $ 5000, the cash payment, together with notes and a trust-deed properly executed to secure the deferred payments, and demanded a deed with general warranty, in accordance with the contract. Pointer tendered them such a deed, but stated that he would not deliver it unless they would accept the same with the Cox lease and notes, which he offered to transfer and deliver with the deed. The Thurmans declined this, but offered to accept the deed without the lease, if delivered unconditionally. This being refused, the parties separated and nothing more was done towards the execution of the contract. On Monday January 2, 1888, the bill in this case was filed by Thurman & Son for specific performance, and for damages on account of the two unexpired years of the lease. The rent notes of Cox were for $ 2200 for each year, and he was to keep the property in repair. The bill alleges that the rental value of the plantation is $ 5000 per annum, but that more could be made by cultivating it with hired labor and croppers, as complainants had expected and arranged to do.

Defendant demurred to the bill. The demurrer being overruled, he answered admitting substantially the facts as above set forth, except as to the time and opportunity for cancelling the lease on November 15, 1887, after the defendant was informed of the contract of sale made by his agent. The testimony shows that he had such time and opportunity, It further shows that the rental value of the plantation had increased 15 or 20 per cent. after the execution of the lease to Cox.

On September 25, 1889, the cause was finally heard on pleadings and proofs, and the court entered a decree in favor of the defendant dismissing the bill. From this decree complainants appeal.

Perkins & Percy, for appellants.

1. A valid contract for the purchase of the land was made between the parties November 14, 1887. It stated all the terms. The rights of the parties must be decided by their respective duties and obligations under that contract as they existed on that day.

2. If a vendee contracts for the delivery to him of possession, when it is known to both parties that constructive possession only can be given, then only such possession is required. But that is not the case here. At the time of making the contract of sale Pointer had the power to cancel the lease, so as to be able to deliver actual possession. It was not necessary for Thurman to stipulate specifically for the cancellation of the lease. It was incumbent on Pointer to cancel it as a part of his agreement. A contract to do a thing includes an agreement to perform every act that is necessary and incidental to it.

3. If there is any doubt as to the fact that the words of the contract meant the delivery of actual possession, this is settled against the defendant by the construction which the parties themselves placed upon the language. Pointer limited the time within which his agent might sell to the 16th of November, 1887, the last day within which he might cancel the lease. He also construed Thurman's letter of November 21, as a demand for actual possession, not because of any express stipulation, but because the letter referred to the contract which meant that. Where language is doubtful, the interpretation of the parties is of great weight. Chicago v. Shelton, 9 Wall. 50; 2 Ib. 728; 10 Ib. 367.

4. The proviso, "If the title is found to be good," etc., settles the meaning of the word possession, because the title would not be good without possession. The word possession got into another part of the contract solely for the purpose of fixing the time when actual occupancy should begin.

5. The argument of the opposite counsel is inconsistent. They claim that Thurman knew of the lease, but not of Pointer's right to cancel. Ergo, Thurman contracted for constructive possession. And yet they say that, as the lease had two years to run and Thurman knew this, it was but fair, if he wanted the place free from the lease, that he should have so stated in his offer. How could he expect to get the place free from the lease unless he knew that Pointer had reserved the right to cancel it?

Counsel do not rest on either theory, but claim the benefit of both, and the two are at variance. But this is immaterial. Pointer, by making the contract, represented that his title was good and that he could deliver possession on January, 1888, and Thurman relied on this. And, as a matter of fact, Cox did not have an absolute lease, and Pointer could have cancelled it.

6. The case of James v. Lichfield, L. R. 9 Eq. 51, was...