Cook v. Smith

80 So. 777 | Miss. | 1919

Ethridge, J.,

delivered the opinion of the court.

The appellee was complainant below and filed a hill in the chancery court against the appellant, a nonresident, for the recovery of one thousand, nine hundred and seventy dollars, claimed to he due the complainant for services in making a certain sale of lands in Quit-man county, Miss. It is alleged in the bill that the appellant entered into a contract with the appellee to sell for the appellant the said lands at fifty dollars per acre, and that the complainant Smith would receive five dollars per acre for his commission in case he should sell the land at fifty-five dollars per acre. The memorandum signed hy J. V. Cook reads as follows:

“Dr. J. Y. Cook’s land in Quitman Co. Miss. S% of S% Sec. 1 — 28—2 "W. 155 acres

N E % S W % & S E % N W & N E % N W % Sec. 2 — 28—2 W. 117

Y7 y2 N W % & N W % N E % Sec.' 12 — 28— 2 W. 122

. 394 A

“50. per acre

“One half cash, bal one year from date and assume $5000.00 now against the land, this 20th day of Nov. 1919. [Signed] J. Y. Cook.” ■

It appears from the testimony for the appellee, com-painant below, that he was at the residence of Dr. Cook in the state of Arkansas for the purpose of procuring the power to sell the lands for certain customers at Jackson, Miss., and that he had agreed to sell the said customers the said lands at fifty-five dollars per acre, and that Dr. Cook agreed to this arrangement and signed the memorandum set out above, and while he and Smith were still together, one Leeton came up and introduced himself to Dr. Cook, and stated that he wanted to buy the lands in question; that Dr. Cook referred Leeton to Mr. Smith, stating that he had just agreed to let Mr. Smith sell the lands, and that Leeton •would have to confer with Smith; that afterwards Smith signed, a contract, agreeing to sell and convey the lands to Leeton which contract was signed by both Smith and Leeton. Dr. Cook contends that Smith had come to his place to get an agreement to sell the said lands to his customers in Jackson, Miss., and that he agreed with Smith that, inasmuch as Smith had promised these ■ customers to sell the lands at the price of fifty-five dollars per acre, he would agree to sell the lands for the price to said customers and give Smith five dollars per acre commission on such sale, but that, while they were still at the place in conversation, Lee-ton came in, introduced himself, and stated that he wanted to buy this property in question, and that he told Leeton that he would sell him the property at fifty-five dollars per acre, and that Leeton said he thought he would take the property at that price, as he wanted to buy it, and that he asked Leeton if he wanted to look at the place again before buying, and that Leeton said that He did. He, Dr. Cook, then said, “Smith knows, the place, and will show it to you,” and that they left, Smith and Leeton together, and that when the deed was sent to Cook for signature he declined to make conveyance because under his contention Smith was not entitled to any commission, and that he himself had sold the land to Leeton. Smith insisted upon five dollars per acre as commission, and Cook declined to make the deed.

Dr. Cook* is supported in his testimony by that of his wife, while Smith is supported in his testimony by Lee-ton. The chancellor heard all of the evidence, and rendered judgment against Dr. Cook in favor of Smith. It is insisted by the appellant that Smith is not entitled to recover because the memorandum signed by Cook is insufficient to constitute an agreement in writing to sell lands; and, second, because the, evidence fails to show that Smith brought the buyer and seller to-getter; and, third, that Dr. Cook had the right to annul the contract, if one existed, any time before the sale was consummated.

In Hancock v. Dodge, 85 Miss. 228, 37 So. 711, this court held that the statute of frauds, in reference to oral agreements for the sale of interests in land, does not affect an agent’s right to compensate for selling land pursuant to oral instructions. See, also, Lesley v. Rosson, 39 Miss. 368, 77 Am. Dec. 679.

In Hopper v. McAllum, 87 Miss. 441, 40 So. 2, this court held that under the statute of frauds it is unnecessary to the validity of the executory contract for the sale of the land by the agent by whom it was signed to have been authorized in writing; that under such agreement, though oral, followed by a written agreement to convey, signed by the agent, was good in equity —citing Lobdell v. Mason, 71 Miss. 937, 15 So. 44. It would seem from these cases that the complainant’s right of recovery would not depend upon the sufficiency of the memorandum contract, but, if he made the sale or procured a buyer ready to take at the named price, that he could recover, though his contract with .the principle was merely verbal.

In Johnson v. Sutton, 94 Miss. 544, 49 So. 970, it is stated that where the contract between a broker and his principal specified the terms on which land is to be sold, the broker performs his duty, and is entitled to his commissions, when he produces a purchaser ready, willing, and able to buy on the specified terms, but that where the terms are not specified and the actual sale is to be made by the principal the duty is not performed until he produces the purchaser to whom the principal sells. If the testimony of Smith and Leeton be true, the terms of the sale were specified at the residence of Dr. Cook, and he procured the signing of an agreement binding upon the purchaser to buy the said lands. Thé chancellor necessarily is better able to determine the truth of conflicting statements of witnesses than the appellate court, and his findings, unless manifestly wrong, will not he disturbed on appeal. We think the evidence sufficient to warrant the court in finding for the complainant on such conflict in the testimony as exists.

While a seller of real estate can revoke the power of an agent before such agent performs his agreements, a seller cannot repudiate such agency so as to defeat the agent’s commission after a purchaser is obtained who is able and willing to carry out the contract, and who has obligated himself in writing to do so. There was no repudiation of Smith’s agency by any notice prior to Leeton’s signing the contract to purchase, and Cook only repudiated the transaction because he did not want to pay Smith’s commission. We think the judgment of the chancellor should be upheld, and the case is accordingly affirmed.

Affirmed.