Hancock v. Dodge, 85 Miss. 228

85 Miss. 228 | Miss. | 1904

Calhoon, J.,

delivered the opinion of the court.

This is an appeal, to settle the principles of the case, from a decree overruling Hancock’s demurrer to Dodge’s bill in equity, which bill is to reform a contract so as to make it conform to the agreement and intent of the parties, and for general relief.

The case made by the bill, and admitted by the demurrer, is this: Hancock and one Barksdale owned together, equally, a body of land. Dodge, as a real estate broker (at least, in the particular instance), interviewed both, soliciting an agency to sell the lands. Barksdale agreed to take the sum of $14,000 for his half interest, and Hancock, for his half, agreed to take $15 per. acre, and he furnished Dodge with the following writing: “Barksdale, Miss., Apr. 20th, 1903. Mr. H. C. Dodge, Eitzhugh, Miss. — Dear Sir: I will take fifteen dollars per acre for my part on our place, sections 21, 22, and 27, township 23, range 3 west. Yours truly, W. H. Hancock.” The agreement between Dodge and Barksdale, not written, was that Dodge was to have, as commissions, all over $14,000 of what he sold Barks-dale’s interest for; and his agreement with Hancock, not written, was that he should have all over $15 per acre of the sale. Pursuant to this agency, Dodge effected a sale to one Chestnutt for a sum in excess of both the limits, and Barksdale promptly paid Dodge the overplus, as he had agreed to do; but Hancock declined to perform his oral agreement, and Dodge filed this bill.

The sale by the agent, Dodge, by consent of the parties, was for a certain sum in cash, and the balance in deferred payments bearing annual interest and secured by trust deed, with Dodge as trustee, and Barksdale and Hancock executed warranty conveyances to Chestnutt. This sale being thus assented to by Hancock, it does not lie in his month to object that his note above quoted meant for cash, and so this ground of demurrer, and that the suit of Dodge was premature because before full collection of the sale price, is not well taken.

. We do not see that the statute of frauds, in reference to oral agreements for the sale of interests in land, has any bearing on this case, which is for the compensation of an agent to effect a sale of land.

If the position taken in the ninth ground of demurrer, that there is a remedy at law, was tenable, we cannot now reverse for that, because of sec. 147 of the constitution, the chancellor having taken jurisdiction. Cazeneuve v. Curell, 70 Miss., 521 (13 South., 545); Adams v. Bank, 74 Miss., 307 (20 South., 881); Day v. Hartman, 74 Miss., 489 (21 South., 302); I. C. R. R. Co. v. Le Blanc, 74 Miss., 650 (21 South., 760).

Affirmed, with sixty days to answer after mandate filed below.