101 So. 488 | Miss. | 1924
Lead Opinion
delivered the opinion of the court.
It is suggested that we erred in our decision .of this case in the opinion which was handed down recently. We have given due consideration to the suggestion of error and have decided to overrule it. But in order to clarify the opinion in one respect we shall withdraw the former opinion rendered herein and substitute the following as the opinion of the court in the case.
The suit is by attachment in chancery against the appellant non-residents, to recover damages for a breach of a written instrument purporting- to be a lease contract for certain land for the year 1922. From an order overruling a demurrer to the bill this appeal is brought.
The record briefly stated, shows this kind of a case: The appellee Watson, as an assignee of a written lease of certain lands for the year 1922, charges in his bill that the appellants had entered into the written contract with one E. H. Knight to lease the land in question to Knight for the year 1922, and that Knight assigned the lease to appellee for a consideration of two' hundred and 'fifty
The appellants, defendants below, demurred to the bill on the ground that no cause of .action was shown by the hill because the written lease filed as an exhibit to the bill had never been sighed by the appellants hut was only signed by the said Knight who it is claimed had leased the land from appellants. The bill of complaint seems to charge that there was a contract which was violated, but sets out the written contract as an exhibit to the hill which is claimed to have been violated and upon which the suit is founded. This written contract of lease as shown by the exhibit to the bill was never signed by the appellants, therefore never entered into, hut was signed only by the said Knight as lessee, who also assigned it to the appellee Watson, and acknowledged the assignment and placed it upon record.
The contention of the demurrer is that the suit is based solety on the unsigned written contract which is shown by the exhibit to the bill, and that the contract was* never executed by the appellants, and is therefore invalid, and that the exhibit to the bill upon which the alleged complaint is wholly founded is insufficient for recovery, and that appellee sues as assignee of this void contract.
We think the position taken by appellants is well founded and must he sustained. Where the written contract upon which the suit is based is filed as an exhibit, and relied upen solely as showing the contract, and from its character it may be seen that there is no cause of action the demurrer to the bill will be sustained.
Now in the case before us the unsigned exhibit of course cannot he considered a contract. It negatives the
Therefore the decree of the lower court is reversed and the case remanded for further proceedings. The former judgment is modified to remand’ instead of dismissing the cause.
Reversed and remanded.
Suggestion of error overruled.
Concurrence Opinion
(concurring).
One of the contentions of counsel for the appellant is that this suit is not on the unexecuted written instrument filed as an exhibit to the bill but is on an oral agree-' ment for the lease of the land for one year; that while the parties thereto intended to,reduce, this agreement to writing they also, intended for it to become operative whether reduced to writing; or not; and that the unexecuted written agreement was filed as an exhibit to the bill simply for the reason that it sets forth what the agreement in fact was. Such a contract of course is valid, but the allegations of the bill when construed in connection with the exhibit thereto and the assignment of the contract to the appellant, which is of the written instrument filed as an exhibit to the bill, present a suit on a written and not an oral contract. If the oral agreement were intended to become operative whether reduced to writing or not, the bill of course may be amended so ,as to set forth that fact.
