Johnson v. Sutton

| Miss. | Mar 15, 1909

Smith, J.,

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-parties hereto that first party shall pay to second party or his authorized agent fifty cents per acre for each and every acre which shall be sold to any purchaser brought by second party, either directly or otherwise, up to fifty thousand acres, said amount ti-be paid out of tire purchase money as soon as any land is sold to. such purchaser. It is further agreed that said lands up to fifty-thousand acres shall be secured by first party and shall be handled by and through him and delivered to said purchaser. It is. further agreed that in any other deals hereafter, which first party may secure, that he will co-operate with second party in-the sale of the same, giving second party first right or chance to-secure buyer for any such tract of land so secured, before offering it to other's; and the second party here agrees to use his best-efforts to secure a purchaser for said lands so secured by first party before offering said purchaser any other lands. Witness our hands to two (2) copies of this agreement.

“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. It is agreed that the timber lands to be sold, conveyed, and delivered are the same lands looked over and inspected by Thomas Foley, Eugene E. Sutton, and Joel F. Johnson, and such other-lands as he may own or acquire along the Pearl river, that shall average for timber to a standard equal to the five thousand one-hundred and twenty-three afires owned by Joel’F. Fohnson and wife, adjoining the homestead, but situated in Nankin county. All of said lands that have not been examined and approved shall be subject to the,examination and approval of the parties of the-second part or their agents.”

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 of .$11,288, balance claimed by him as commission on the sale of forty-two thousand five hundred seventy-seven acres of land, which he claimed appellee could and ought to have made to Poley & Larson. Payment was refused, and this suit was instituted in the court below by appellee to recover said amount. Whereupon appellant filed an answer, denying that appellee was entitled to the relief prayed for, and made .his answer a cross-bill, praying that appellee be decreed to refund the $10,000 he advanced him. Prom a decree dismissing the bill, and directing appellant to pay appellee $9,911.50 and interest thereon, this appeal is taken.

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 to his commissions. Appellee cannot complain because appellant did not comply with his agreement with Foley & Larson to furnish lands of a certain quality, or, if he did so comply, because he did not hold Foley & Larson to their contract; for without this agreement the contract with Foley & Larson would never have been made, and as he (appellant) was under no obligation to appellee to make this agreement, he was under no obligation to him to comply with it, or to hold Foley & Larson to a compliance with their contract, even if he could have done so, as to which we express no opinion. All the authorities bearing on every phase of this question will be found set out in the briefs of' counsel on both sides, to which reference is here made.

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.