Westbrook v. McCarty
| Decision Date | 12 May 1931 |
| Docket Number | 29387 |
| Citation | 134 So. 193,160 Miss. 455 |
| Court | Mississippi Supreme Court |
| Parties | WESTBROOK et al. v. McCARTY et al |
1 SALES.
Where there is no time limit in contract for furnishing commodities, contract is terminable by either party on reasonable notice, without assigning cause.
2 PLEADING.
Pleading must be construed more strongly against pleader.
3. SPECIFIC PERFORMANCE.
Under bill alleging contract was carried out for some time by parties before it was breached by defendants, it would be inferred defendants gave complainants reasonable notice that they would not further abide by contract.
4 CORPORATIONS. Contract for manufacture of fixtures for corporation held to require transfer of stock as consideration for expense incurred in preparing for manufacture.
The contract provided, in substance, that defendant would cause one hundred shares of his stock to be issued to complainants, and that complainants agreed to make store fixtures on terms and at prices specified, and that such stock was to be held in escrow as provided for in agreement.
5. SPECIFIC PERFORMANCE.
Manufacturer could not have contract for manufacture of store fixtures specifically enforced, where there was no time limit in contract.
6. CORPORATIONS. Bill alleging defendant agreed to transfer to complainants one hundred shares of stock under contract for manufacture of fixtures, but transferred only sixty shares, stated good cause of action.
Bill alleged, in substance, that under terms of contract there was to be delivered to complainants one hundred shares of stock of corporation from stock owned by defendant when incorporation was completed, and that complainants were to develop and manufacture fixtures for stores of corporation, and that defendant represented he was not able to deliver entire one hundred shares, but was able to deliver only sixty shares, stating there was shortage of stock, and that it would be necessary for all parties to take pro rata reduction, and that complainants relied on such representation as being true, and received sixty shares, but that such representation was false.
HON. V. J. STRICKER, Chancellor.
APPEAL from chancery court of Hinds county, First district, HON. V. J. STRICKER, Chancellor.
Suit by W. W. Westbrook and others against W. B. McCarty and others. From the judgment, defendants appeal. Affirmed in part, and reversed in part, and remanded.
Affirmed in part and reversed in part and remanded.
Wells, Jones, Wells & Lipscomb and B. B. McClendon, all of Jackson, for appellants.
The demurrer of Jitney Jungle, Inc., should not have been sustained on the theory that the contract was one for the benefit of purchasers of store rights because the contract was between McCarty and Jitney Jungle, Inc., on the one hand and appellants on the other.
The contract taken as a whole shows unmistakably that appellees were to make the payment for the fixtures because they contracted for the price schedule, page 12 of the record and for every detail of the manufacturing of the fixtures.
The demurrer should not have been sustained as to either appellee because it charged a fraudulent act by appellees in inducing appellants to surrender forty shares of stock and what is said here will apply to the demurrers to the amended bill.
Fraud vitiates everything it touches. It is certainly charged in this bill in language about as plain as can be conceived of.
It is a well settled principle of law that the courts will follow the construction placed upon a contract by the parties thereto unless that construction be contrary to the statute law or the public policy of the state.
A. & S. Spengler v. Stiles-Tull Lbr. Co., 48 So. 966, 94 Miss. 780, 19 Ann. Cas. 426; Humpheys v. McFarland, 48 So. 1027; Ramsay v. Brown, 25 So. 151, 77 Miss. 124, 78 Am. St. Rep. 520; Powell v. Russell, 41 So. 5, 88 Miss. 549.
F. W. Bradshaw and Flowers, Brown & Hester, all of Jackson, for appellees.
The lower court sustained the demurrers to the original and amended bills of complaint as to the damages sought for the alleged breach of the contract because such contract did not impose any obligation upon appellees, or either of them, to give appellants the orders for the manufacture of the fixtures for the Jitney-Jungle Stores which purchased and use the Jitney Jungle patent rights. Nowhere does the agreement obligate appellee McCarty, or appellee Jitney Jungle, Inc., to permit appellants to manufacture the fixtures. Neither does the agreement obligate them, or either of them to require the purchasers of the Jitney Jungle patent rights to place orders with appellants for the manufacture of fixtures to be used in their stores. Appellees could not have required the purchasers to do this if they wanted to.
The exhibit is as much a part of the bill as the allegations.
Section 192 of Griffith's Mississippi Chancery Practice.
The suit herein is on the written contract. In other words the written contract is relied upon as a basis for relief and they must recover on it as written. The rule is that when a suit is brought on a written contract, which is relied upon as a basis for relief, and the written contract is attached as an exhibit to the complaint, and there appears a contradiction between the allegations of the complaint and the contract, the exhibit controls.
The allegations of the amended bill of complaint are to the effect that the intent and purpose of the contract was for appellees to place the orders for the fixtures to be used by the purchasers of the patent rights with appellants. The answer to this is that the contract relied upon does not so state.
Appellants were not misled by the alleged representations of McCarty because they had in their possession the facts as to which they claimed to have been misled. They knew the number of shares of stock owned by McCarty. They further knew the one hundred shares of stock which he agreed to have issued to them were in escrow with the Merchants Bank & Trust Company and that McCarty could not keep them from obtaining the stock if they performed their part of the agreement, and they were not concerned with a shortage in the stock. The one hundred shares which they were to receive were in escrow and could not be diminished by a shortage in the stock.
No principle of equity jurisprudence is more firmly established than that, where fraud is relied on as a basis of relief sought from a chancery court, the facts upon which the charge of fraud is predicated must be specifically stated with full definiteness of detail. No general averment of a fraudulent course of business, and no bare statement of a corrupt design on the part of the defendant is sufficient. The acts themselves which are claimed to be fraudulent must be clearly set out.
Section 176 of Griffith's Mississippi Chancery Practice.
Since the complaining party must have relied on the representations in order to render them actionable, it follows that they must have deceived him. This is true, however false and dishonest the representations may be, and regardless of the fact that they were made with intent to deceive.
12 R. C. L. 355; Clopton v. Cozart, 13 Smedes & Marshall, 363; Anderson v. Burnell, 5 How. 165.
The charges of fraud contained in the original and amended bills of complaint are not positive and certain. The charges are not complete. They do not charge that the representations made to appellants by appellee, McCarty, were not known to be false by appellants.
Appellants, W. W. Westbrook, W. V. Westbrook and R. A. Westbrook, filed their bill against appellees, W. B. McCarty and Jitney-Jungle, Inc., a Delaware corporation, having its principal office in the city of Jackson, in said county, for discovery and the specific performance of a certain written contract, and damages for breach thereof, by the terms of which appellants were to manufacture fixtures for the Jitney-Jungle stores, and appellee McCarty agreed to transfer to appellants one hundred shares of the capital stock of said corporation. There was an original bill, and an amendment thereto, to which appellees demurred. The court sustained the demurrer, and granted appellant an appeal to settle the principles of the cause. The original bill, leaving off the formal parts, follows:
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