87 So. 9 | Miss. | 1920
delivered the opinion of the court.
This is an appeal, to settle the principles of the case, from a decree overruling a demurrer to an original bill.
“I, M. D. Alexander, of Belzoni, Miss., the first party, for and in consideration of one dollar cash in hand paid to me by Willis Brumfield, of Belzoni, Miss., second party, do hereby agree and grant unto said second party the exclusive right to sell the following lands owned by me, situated in the county of Hiumphreys, in the state of Mississippi, to wit: Lot 3i, section 21, township' 15, range 3, west —containing four hundred and twenty acres, at the price of one hundred and ten dollars per acre upon the following term: At the price of $-— upon the following terms: Cash on delivery of the deed fifteen thousand dollars, and the balance in eight equal annual payments to bear six per cent, interest from date of sale. Said agreement of sale to expire January 1, 1920. In the event of sale before the end of 1919, possession to be given January, 1920, or at time of sale provided purchaser purchases live stock and accounts. First party agrees to pay said second party a commision of five per cent, on the total amount of the above-mentioned price for effecting a sale of said property, or for producing a purchaser ready, able, and willing to buy said property on said terms, and agrees that, if second party shall effect a sale thereof at a greater price than that above named, to pay the excess to the second party as extra compensation for making the said sale.”
The bill further alleges:
That while the appellee was endeavoring to sell the plantation and had about negotiated a sale thereof he received the following letter from the appellant’s attorney:
“Mr. M. D. Alexander to-day got me to write a contract for the sale of his Bluesack or Belgrade plantation to Mr,*185 G. L. Nichols. It is believed, that there is little, if any, donbt that the contract will be consummated within sixty days. Mr. Alexander requests me to advise you of this fact so that you need go to no further trouble in the way of finding a-purchaser, and to say that when the sale is consummated he will pay you the commission for which in my opinion he is liable to you.”
That within a few days after receipt of this letter the appellant called on the appellee and paid him the sum of two thousand, three hundred and ten dollars, the amount of commissions he would have earned had he sold the plantation for the appellant at the agreed price. That afterAvards' the appellant told the appellee that his trade Avith Nichols had not materialized,, and for him, the appellee, to proceed with the sale of the land, which he did, resulting in his securing a prospective purchaser who came to Belzoni, the place at which both the appellant and the appellee resided, for the purpose of inspecting the plantation with the view of buying. That he called at the appellee’s office, and, finding him out, called on the appellant and told him'of his appointment with the appellee' and of his failure to find the appellee at his office and requested the appellant to show him the plantation. This the appellant did, the result being that the plantation was purchased from the appellant by this purchaser who had been secured by the appellee for thirty-six thousand dollars, being eight thousand more than the price the appellant had agreed Avith and the appellee to take for it, the appellant also reserving to himself the crops then growing on the land. The deed executed by the appellant to the purchaser is made an exhibit to the bill, and the land therein conveyed is described as follows:
“The north half of section 20 and all that part of lot 3, section 21, lying north of Atchafalaya Bayou, all in township 15, range 3 west, except that part thereof embraced in the, right of way of the Yazoo & Mississippi Yalley Railroad Company, containing four hundred and twenty acres,*186 more or less, known as the Bluesack plantation, except that part thereof described in the final decree rendered by the chancery court of Washington county, Miss., on the 30th day of October, 1907, in the suit of Mary S. Powell v. Virginia Prewitt et al., No. 3315 on the docket of said court, and being the same land conveyed to me by H. W. Lesser and Loula Bell Lesser by deed dated 16th day of January, 1918, which deed is filed for record in Washington county, Miss., on January 19, 1918.”
The prayer of the bill is for a discovery of the value of the crops growing on the land in 1919, the year in which it was sold, and for a decree:
“That your complainant is entitled to a commission of ave per cent, on forty-six thousand, two hundred dollars; that he is further entitled to an overage of eight thousand, eight hundred dollars, being the difference between the fifty-five thousand dollars, the price paid by said Kimbrough, brothers, defendants, and the forty-six thousand two hundred dollars, the price fixed in his broker’s contract, any amount that the said special master finds to have been realized by the said Alexander, defendant, by virtue of his 1919 rentals on said land, and his interest in the growing crops thereon for the year 1919, less a credit of two thousand three hundred and ten dollars,” etc.
The grounds on which it is here sought to reverse the decree of the court below are: First, that the contract executed by the appellant to the appellee was without consideration, and therefore revokable at his pleasure, and was in fact revoked by the latter from the appellant’s atr torney to the appellee referred to in the bill; and, second, that the land sold by the appellant is not that described in his contract with the appellee.
1. Whether or not the appellant had the right to revoke his contract with the appellee and also whether or not it was in fact revoked by the letter of his attorney are not here material, for it is expressly alleged in the bill that
2. The land which tlié appellee was to sell for the appellant is referred to in the bill as tlie/Bluesack plantation, but the exhibit thereto, which must control, described it as lot 3, section 21 toivnship 15, range 3 west, and the land actually sold by the appellant is described in the deed thereto as the north half of section 20 and all that part of lot 3, section 21, lying north of the Atchafalaya Bayou, etc., as hereinbefore set out. The land sold by the appellant therefore embraces, according to the allegations of the bill only a part of that which the appellee had the right to sell. ITe is therefore entitled to recover only commissions due him for the sale of that portion of the land included in the appellant’s deed to the purchaser, and then only in event the commissions already received by him are insufficient to cover commissions on that portion of the land sold.
Affirmed and remanded, with leave for the appellant to answer within thirty days after the filing of the mandate in the court below.
Affirmed and remanded.
