49 So. 970 | Miss. | 1909
delivered the opinion of the court.
On March 15, 1905, appellant and appellee entered into the; following contract: “Madison, Miss., March 15, 1905., -This; agreement, made and entered into this day, by and between Joel E. Johnson, of Madison, Miss., as first party, and E. E. -Sutton,■of St Paul, Minn., as second party: The said parties herein-named having in contemplation the sale of certain timbered-lands lying along the Pearl river, owned by first party; and; others, being in the counties of Rankin, Hinds, Scott, Madison,- and -Leake, and the state of Mississippi, it is agreed'between the-
“Joel E. Johnson, Eirst Party.
“E. E. Sutton, Second Party.”
Pursuant to this contract, appellee induced Timothy Eoley and Peter Larson, composing the firm of Eoley & Larson, to enter into negotiations with appellant with a view of purchasing-timber lands, which resulted in the execution of a contract by which Eoley & Larson agreed to purchase from appellant forty thousand acres of timber land at an agreed price per acre, which-contract, among other things, provided: “That in consideration of one hundred thousand dollars to him in hand paid by the parties of the second part as earnest money, the party of the first part agrees to deliver to the parties of the second part, by proper deed with covenant of warranty, forty thousand acres of timber lands, at ten dollars and fifty cents per acre, except six hundred and forty-four acres known as the ‘Yeagley tract,’ in Rankin-county, Mississippi, of which the purchase price will be seventeen dollars and fifty cents per acre and thirteen hundred and twenty-six acres, being the Powell and Eoote tract of land, for which tract the purchase price will be fifteen dollars per acre.
Appellant thereupon proceeded to acquire timber land sufficient in quantity to aggregate, when added to the amount already owned by him, forty thousand acres, and tendered same to Foley & Larson, who declined to accept it on the ground that it, or part of it, was not land of the standard required by the contract. After vainly endeavoring to induce Foley & Larson to accept and pay for the land, appellant instituted suit against them in the chancery court, praying for a specific performance of the contract- Prior to the rejection of the land by Foley & Larson, they had advanced appellant $250,000 under this contract, and appellant had paid appellee the sum of $10,000, one-half of the commission to which he was entitled on the sale of forty thousand acres of land. While the suit for specific performance was pending, appellant, having then an opportunity of disposing-of the land to another party and owing debts contracted in the purchase of the land which were then due, entered into an agreement with Foley & Larson by which each Released the other from any liability growing out of their said contract; appellant refunding to Foley & Larson the $250,000 advanced him and paying them in addition thereto the sum of $50,000 to cover the expense claimed by Foley & Larson to have been incurred by them in consequence of said contract. The suit for specific performance was then dismissed, and the land sold to another party, .with whom appellee had no connection.
Appellee then demanded of appellant the payment of the sum
The contention of appellee is that when he brought Poley & Larson and appellant together, and the contract between them was. executed, he had done all that he was required to do under his contract, and was, therefore, entitled to his commissions. Where the contract between the broker and his principal specifies the terms upon which the land is to be sold, the broker has performed his duty and is entitled to his commissions when he produces a purchaser ready and willing and able to buy upon the terms specified; but where the terms are not specified, and the actual sale is to be made by the principal, as in the case at bar, his duty is not performed until he produces a purchaser to whom the principal sells. Under appellee’s contract it was his duty to produce a purchaser who would buy timbered land, the actual sale to be made by the appellee. He did produce a purchaser who was ready, willing and able to purchase forty thousand acres of timbered land, but on condition that that portion of it which had not been inspected should be of a certain quality. Appellant was under no obligation to furnish land of this quality, and his agreeing with Foley & Larson to do so imposed on him no obligation to do so, so far as appellee was concerned.
It follows, therefore, that the contract with Holey & Larson was not a contract for the sale of land such as was contemplated by the contract between appellant and appellee, and as the sale was never, in fact, consummated, appellee never became entitled
The decree of the court below is reversed, the bill dismissed,, and decree here on cross-bill directing appellee to refund to appellant the $10,000 paid him under the contract of March 15th.
Reversed> etc.