EthRidge, J.,
delivered the opinion of the court.
T. J. Griffith owned certain lands near West Point, Miss., containing about six hundred and eighty acres. J. C. Long was a real estate man in West Point, Miss., and Long approached Griffith with a proposition of making a sale of Griffith’s place. Griffith agreed that Long should sell the place if he could get fifteen dollars per acre plus five hundred dollars for the place and also that any excess of that amount was to go to Long as compensation for his services in the matter. Long secured one Taylor from New Dover, Ohio, to buy the premises in question. A contract was drawn up between Griffith and Long which reads as follows:
“This contract made and entered into this day by and between Tom Griffith and J. C. Long witnesseth: The said Tom Griffith has appointed and constituted the said *667J. C. Long his agent with full power to sell his (Griffith’s place, consisting of about six hundred and eighty acres located about four miles west of Muldon, Mississippi, in Olay county, said state, provided the said J. 0. Long shall pay to the said Tom J. Griffith fifteen dollars per acre for said land, and in addition to said price five hundred dollars, and provided the sale is made by August 1, 1914; any amount realized by said J. 0. Long from the sale of said land over and above the said fifteen dollars per acre, and the additional five hundred dollars is to belong to the said J. C. Long as his profits for the sale of said land.”
This contract is signed by both parties. On the 1st day of August, Long got Griffith and Taylor together and consummated a sale of the premises in question for the sum of thirteen thousand dollars. Contract was signed by both Taylor and Griffith, and by its terms Taylor paid one thousand dollars in cash and was to pay four thousand dollars on the 15th day of September and the balance on the 1st day of January, 1915. This contract was executed in duplicate, one .thousand dollars paid over, of which two hundred and fifty dollars was paid to J. C. Long. Thereupon Taylor returned to his home in Ohio, and about the 5th day of August wrote Griffith that on returning home he found that the German and French war had broken out and that the banker who had promised to let him have the money with which to finance the transaction was reluctant to carry out the contract, and Taylor asked Griffith how he (Griffith) was situated to carry the deferred payments or a part of them; that under the condition as then existing it would he difficult to sell Taylor’s property, and he would like to hear from him about the matter. Thereupon Griffith wrote Taylor telling him that in view of the situation he would release him from his contract if Taylor so desired. Afterwards, Griffith wrote Taylor that he would make the deed in accordance with the contract, and Taylor came to West Point, reaching there on *668the 16th day of September, being detained or delayed in reaching there by train, by which he came in on by way of Birmingham, having stopped at Columbus the night before. Taylor then sought Griffith and wanted him to carry him out to his place that he had bargained for, he ■ having his wife with him at the time, who desired to see the place. Griffith did not have the conveyance to carry him to the premises, and Taylor then went to Long, who agreed to carry him out the following morning. In the meantime, on the 16th, Taylor went to another real estate man who had a Ford car, and procured this gentleman to carry him and his wife to the premr ises, and asked this agent as to the law of days of grace on contracts in Mississippi. On the following day, Taylor went to Griffith and approached him about the amount of commissions due Long, which were stated to him by Griffith. Taylor then proposed that they rescind the transaction and divide Long’s commissions. In other words, that they make a new deal by which Long would be eliminated and the amount of his commission divided between the contracting parties, which Griffith declined to do. On the 18th, Taylor went to Griffith and tendered him a letter declining to carry out the trade and requesting a return of the one thousand dollars, paid as initial payment. This one thousand dollar payment under the terms of the contract originally entered was to be forfeited if Taylor failed to carry out his contract. Griffith agreed to return the one thousand dollars, and Taylor left, and he (Griffith) returned the one thousand dollars about a week thereafter.
Long was not consulted by either Taylor or Griffith in the rescission of this contract and, learning of the rescission of the trade, filed this suit. During the term at which the trial took place, a motion was made by Long to continue the case for the purpose of taking Taylor’s deposition. During the hearing on this motion, Griffith agreed that Taylor would swear what was stated in the affidavit for' a continuance what they ex*669pected to prove by him; that is to say, that he (Taylor) would, have carried out his contract had Griffith nob released him. There is no proof that Taylor could not have carried out the contract had Griffith held him to the contract. There was much incompetent evidence in the nature of hearsay, being statements made by Taylor and Taylor’s wife hearing on the matter not made in the presence of Long, which was objected to and the objection overruled. There were also some questions and answers filed in the conrt by an attorney in Ohio to whom questions were sent by Long’s attorneys, as they say, for the purpose of eliciting what Taylor would testify to for the purpose of taking his deposition. The. attorney in Ohio, instead of furnishing the information to Long’s attorneys, proceeded without authority and without notice being served on Griffith to take the questions and answers of Taylor in the form of deposition and filed them in court without sending them to the attorneys of Long. The court permitted this alleged deposition to be introduced by the defendant over the objection of the plaintiff. Of course, the statements made by Taylor to Griffith and to the real estate agent, Mr. Stanley, and the alleged questions and answers of Taylor taken without notice, constitute error. However, in. our opinion on the record in this case there was no defense made by the defendant to Long’s suit. The defendant himself testifies as to the terms of the contract and to the effect that he rescinded the contract without the consent or knowledge of Long, and we think on his • testimony, and the admitted statement of Taylor, Long was clearly entitled to recover for the amount sued for, to wit, two thousand and fifty dollars. Accordingly, the case is reversed, and judgment entered here for the appellant for said amount and all costs.
Reversed and judgment here.