Upton v. Adcock

• Decision Date: 03 December 1928
• Docket Number: 27405
• Citation: 152 Miss. 459,119 So. 190
• Court: Mississippi Supreme Court
• Parties: UPTON v. ADCOCK. [*]

119 So. 190

152 Miss. 459

UPTON v. ADCOCK. ^[*]

No. 27405

Supreme Court of Mississippi

December 3, 1928

Division B

1 RELEASE. False representations in procuring sale under contract executed in consideration of release of existing contract constitute defense to action on such contract.

In a suit on a contract for a given amount executed in consideration of release of a contract existing between the parties and on condition that the property be sold, where the promisee in said contract procures such sale through fraudulent representations, such false representations are a defense to the contract sued on, and on the trial the court should submit to the jury by proper instructions the hypothesis of fraud.

2. CONSTITUTIONAL LAW. Constitutionality of statute will not be determined unless necessary to disposition of case.

Where it is unnecessary to a disposition of the case to determine constitutionality of statute, the court will not render a decision thereon.

HON. W L. CRANFOR, Judge.

APPEAL from circuit court of Covington county., HON. W. L. CRANFORD Judge.

Suit by M. M. Adcock against C. W. Upton. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Sennett Conner, for appellant.

The court committed error in refusing to give certain instructions requested by defendant. By this ruling the defendant was deprived of a proper and complete defense to said action. The appellant swore that he terminated the contract of employment only because of the sale to W. T. Adcock, brother of appellee, which was induced by the fraudulent concealments and misrepresentations of the appellee, who negotiated that sale. It is undisputed that the said sale was rescinded and the deed of conveyance cancelled because of such fraud. It is undisputed that W. T. Adcock, who gained possession of said farm through this fraud of his brother M. M. Adcock, the appellee, retained such possession to the exclusion of the appellant throughout the year covered by the contract of employment, and, in fact, that the appellee himself was in control and possession of the place for some time during the year.

W. U. Corley, for appellee.

The instructions refused appellant are certainly out of order. First, there is no showing of fraud to vitiate this contract. The sale was made at the request of appellant, and appellee only assisted. Nowhere is fraud shown, and there is certainly no evidence in the record to show that the deed was cancelled, or if so, that it was cancelled because of the acts of appellee. It is true, he, Upton, testified about the fraud and misrepresentations, and differed in many ways from appellee, but the jury did not believe him, and it being submitted to a jury, he cannot be heard to complain of the fact that he was not believed.

OPINION

ETHRIDGE, P.J.

J. M. M. Adcock filed suit against C. W. Upton in the circuit court of Covington county for the sum of one thousand dollars alleged to be due Adcock by reason of the surrender of a contract between Upton and Adcock whereby Upton was to pay Adcock to oversee and manage a plantation owned by Upton. The original contract to oversee the plantation was in writing, and provided as compensation for Adcock the sum of one cent per pound for each pound of lint cotton raised on the lands described during the year 1926. Adcock had entered into the performance of the said contract when Upton became desirous of disposing of his plantation and enlisted Adcock's services in making the sale for him. M. M. Adcock took up the matter of sale of Upton's plantation with his brother, W. T. Adcock, and consummated the deal with him for Upton; Upton taking certain property owned by W. T. Adcock in part payment therefor. After making the trade, Upton discovered that the place he had acquired from W. T. Adcock was not of the character represented to him by M. M. Adcock in negotiating the deal between him (Upton) and W. T. Adcock. Upton thereupon filed a bill in the chancery court against W. T. Adcock to cancel the trade on the ground of fraud. The cause was heard in the chancery court, and a decree was entered canceling the contract, and because of fraud the contract was canceled upon disputed testimony; there being conflict between Upton's and Adcock's testimony as to the facts. That decree, on appeal, was affirmed by this court and Upton restored to the possession of the premises, but the right of possession was deferred until the completion of the crop.

M. M. Adcock had also filed suit against C. W. Upton for his salary under a written contract, before the expiration of the year in which the crops were to be grown and harvested. In that suit he recovered two hundred dollars as compensation, but on appeal the judgment was reversed and the suit dismissed, because prematurely brought. Thereupon the present suit was filed. The general issue was pleaded by Upton, and notice given thereunder of special matter, wherein it was stated that the alleged contract sued on was terminated, by oral agreement between plaintiff and defendant, at the time defendant agreed to sell to W. T. Adcock said place (which sale M. M. Adcock was anxious to have consummated); that at that time it was agreed between plaintiff and defendant that the defendant would be relieved from liability under said contract; that the plaintiff agreed to the termination of said contract as an inducement to the defendant, Upton, to sell the said lands to his brother, W. T. Adcock; that the plaintiff had an agreement with his brother to manage the farm for him on the same terms and conditions contained in the contract with Upton, and continued to superintend the said plantation and perform his duties during the year; that plaintiff had, or could have, secured employment in line with his training and business fully as remunerative as that provided for in the contract sued on; that the plaintiff never brought action, or thought of bringing it, until the defendant brought suit in the chancery court to set aside the sale of his said plantation to W. T. Adcock because of the fraud practiced upon the defendant by W. T. and M. M. Adcock in inducing him (the defendant) to agree to the said sale.

At the trial M. M. Adcock and his wife testified that Upton had employed Adcock, under a written contract, as stated, and after M. M Adcock had entered Upton's employ that Upton decided to sell his plantation, and did sell it to W. T. Adcock, and that in order to make the sale...