Britton & Kennedy, Inc. v. Hill

Sims, J., after making the foregoing statement, delivered the following opinion of the court: The assignments of error present only two questions for our decision, which will be passed upon in their order as stated below. The first question for our decision is as follows: [1] 1. Did the court below err in refusing to allow the .claims of the appellant, Kennedy and Hill against Terry, the appellee, of the alleged shares of Kennedy and Hill of ■one-third each of $1,690.74 commissions on the sale' of land made to Terry on December 15, 1914, under the eircum [51] stances set forth in the statement preceding this opinion and which amount of commissions appears from the exhibit “D. T. K. C.” copied in such statement? This question must be answered in the negative. It clearly appears from the evidence in the cause that the said $1,690.74 merely constituted commissions on the sale mentioned which Kennedy had earned as against Jirasek, under the contract between Kennedy and Jirasek, by making the sale under and as authorized by such contract. As between Terry, on the one part, and Kennedy and Hill upon the other part, it was in substance provided in the contracts of partnership between them that neither Kennedy nor Hill would be entitled to claim any commissions against Terry, or the land, unless and until the partnership should resell the land at a price in excess of the price at which it was bought in by Terry on December 15, 1914, to-wit, $21,827.50 with six per cent per annum interest thereon until paid to be added, which was owing to Terry, and also the expenses of such partnership resale, so as to make a partenership profit. It was in the partnership profits alone that Kennedy and Hill had any interest. The duration of the partnership was expressly limited to two years from October 6, 1914. But aside from that consideration, the partnership was in fact abandoned by both Kennedy and Hill on and after October 6, 1916. They never made any effort to resell the land for the benefit of the partnership after October 6, 1916. They thereafter left Terry with the 1,585.3 acres of the land on his hands, as between him and Jirasek, at the price at which Terry had bought it in on December 15, 1914, unassisted in any way by Kennedy and Hill, as members of the partnership, in making a resale of it so as to save Terry from loss on the account as between himself and Jirasek. Further, Terry was never able, at any time after October 6, 1916, even up to June 3, 1919, to sell the land so as to make any profit over and above the price at which he bought it in as [52] aforesaid. And the sale of June 3, 1919, of the 1,585.3 acres of the land was at a price of only $19,816.25, and- that only on paper. It is not claimed that the sales of the residue of the land bought in by Terry on December 15, 1914, came anywhere near making up the price of $21,827.50, at which he bought the whole in, as aforesaid, with interest. So that although we may regard time in the limitation of the duration of the partnership as not of the essence of the partnership contract, yet, in no aspect of the case can it be said that Kennedy or Hill were ever entitled, as against Terry, to any commissions under the Jirasek-Kennedy contract and the partnership contracts aforesaid. We are, therefore, of the opinion that the decree under review was plainly right in its holding to the effect that the evidence in the cause, exclusive of that bearing upon the subject of estoppel, “is conclusive against said alleged claims” of commissions. Such being our conclusion it is unnecessary for us to enter at all upon the consideration of the matter of estoppel upon which the court below rested its decision. (2) Did the court below err in holding that the contract of sale between Terry and Britton & Kennedy, Inc., of date June, 3, 1919, was cancelled and surrendered by the latter on the 18th of September, 1919, and thereafter ceased to exist, and that no other contract was then entered into between Terry and Britton & Kennedy as a consideration for the cancellation of the said contract and no other contract was subsequently made between Terry and such parties or either of them for the sale of the land in question, and that neither Britton & Kennedy, Inc., nor Kennedy nor Hill are entitled to the specific performance of the contract of June 3, 1919? This question must be answered in the negative. [2-4] That the contract in question was in fact cancelled by mutual consent and agreement Of both parties thereto admits of no doubt under the evidence in the cause. The can-' [53] cellation being an executed agreement avoided and put an end to the contract (2 Min. Inst., 3rd ed., p. 749), and it required, as is well settled, no other consideration to support the cancellation. As to this there is no controversy before us. The only subject of controversy before us touching the validity and finality of the cancellation of the contract is over the question of whether or not the cancellation was unconditional, or was conditioned upon and in consideration of an agreement on the part of Terry to execute a subsequent contract. Upon this subject the testimony of Terry and Kennedy is directly in conflict, and whether the fact is that the cancellation aforesaid was unconditional or conditional depends upon whether credence is to be given to the testimony of Terry and Kennedy. The court below, as appears from the decree under review, gave full credence to the testimony of Terry, and did not give any credence to the testimony of Kennedy on this subject. We have found nothing in the record from which we can say that the court below erred in so doing. It is well settled that on every appeal the action of the court below carries with it the presumption of correctness until the contrary is made to appear. Reynolds v. Adams, 125 Va. 295, 99 S. E. 695. It follows, therefore, that the action of the court in the particular under consideration must be affirmed. Much has been said in the argument before us, written and oral, on the subject of accord and satisfaction, and a great number of authorities have been cited by counsel on both sides of the cause as bearing upon the questions of law, whether, if there was on the part of Terry, on September 18, 1919, a verbal contract with Kennedy, acting for Britton & Kennedy, Inc., which amounted to a promise to enter into another contract in writing in lieu of the June 3, 1919, contract, which was the condition upon, or the consideration for which, the latter contract was cancelled, such [54] mere promise of itself constituted an accord and satisfaction of the last named contract, so as to render its aforesaid cancellation valid, or whether the refusal of Terry to perform such promise operated to nullify the cancellation of the June 3, 1919, contract. But, in view of the conclusion of fact reached by the court below on the subject, which we must approve, as aforesaid, there was no such promise made by Terry. Therefore, no such questions of law are presented for our decision. Hence, there is no occasion for us to deal here with the questions of law or with the authorities just referred to. The decree under review will be affirmed. Affirmed.