Swain v. Pitts

Etheidge, J., delivered the opinion of the court. The appellees, real estate agents, brought suit against the appellant in the circuit court for five thousand dollars, commission alleged to be due them on a sale of a certain plantation in Washington county. There was a judgment for the plaintiffs in the court below for this sum, with interest from date of sale to the date of the judgment. The contract in substance was contained in the letter bearing date October 27, 1917, which reads as follows-: “Hollyknowe, Miss., October, 27,1917. Pitts & Weeks, Indianola, Miss. — Dear Sir: Eeplying to yours of the 25th, you ask for a price on Hollyknowe. I will sell Hollyknowe and Fairfax, too, and below I give you dis-cription and prices. Fairfax plantation: two thousand two hundred and forty three acres in tract one thousand, eight hundred and forty-one acres open and in cultivation. Eighty-three mules. Two saddle horses. Four thousand bushels corn. Seventy-five to one hundred tons alfalfa hay. All farming implements, tools, and all machinery. Price two hundred sixty-five thousand dollars. Terms, all cash, or half cash and bond for balance of purchase price, as this is a minor heir proposition, and the court requires all cash or sufficient bond for balance. Hollyknowe plantation: one-thousand, and ten acres in tract. Tile drained. Artesian water. Electric lights. Ninety to one hundred mules. Three horses. All farming implements, tools, machinery of all kinds, including gas engine, logging and road-building equipment. Four thousand bushels of corn. One hundred tons alfalfa hay. I am willing to allow you a commission of ten thousand dollars to sell these two properties. [592] This is not to he considered an option on these properties. If you send buyer to me, and I sell him, then I will allow you the commission, just as if you liad made the trade. I will not sell Hollyknowe plantation, unless I sell the Fairfax plantation; but I will sell the Fairfax plantation, whether I sell the Hollyknowe plantation or not. Please understand this. Cotton seed to plant both properties with this deal, either Express or Polk cotton. Get busy now, Mr. Pitts, ánd let me hear from you.- Tours very truly, W.' B. Swain. I want to close these properties up as a cash proposition.” After this letter was written, the appellant wrote the appellees as follows: “Nov. 17, 1917. Pitts & Weeks, Indianola, Miss.— Dear Sirs: Referring to my letter of Oct. 27, 1917, in which I named you a price on Fairfax plantation and Hollyknowe plantation. I have decided to takes these properties off of the market, and herewith withdraw the prices made you on same. Kindly acknowledge receipt of this letter. Yours very truly, W. B. Swain.” To this letter the plaintiffs replied as follows: “Indianola, Miss., November 19, 1917. Mr. W. B. Swain, Hollyknowe, Miss. — Dear Sir: Replying to your letter of November l7th,'we will discontinue offering the Fairfax and Hollyknowe plantations. We are Sorry that you have decided to take these off the market, as some day we would have probably run across a man with enough finance to have handled them. We worked hard on the Fairfax place, and had it sold one time, but an old man, Holland, at Clarksdale, persuaded our purchaser not to buy. Should you ever put these properties on the market again, we will appreciate it if you will remember us. With personal regards, and awaiting your further pleasures, we remain, yours very truly, Pitts & Weeks, by W. T. Pitts.”. It is claimed that after this correspondence had passed, in December, the appellant authorized Pitts & Weeks [593] to relist the property for sale on the same terms as in the letter- dated October 27, 1917, above set out, and on December 6th the appellant wrote the appellees a letter containing the following reference to the transaction involved: • “Get busy now, Mr. Pitts, and sell Fairfax 'but I will not cut the price. Let me hear from yon.” The appellees say they readvertised and offered the properties to several parties, among whom was- Mr. A. D. Neely, the party who finally purchased it; but Mr. Neely would not offer more than two hundred and fifty thousand dollars, and the appellant had not agreed to accept less than two hundred and sixty-five thousand. It is in the testimony of Mr. Neely, the purchaser, that he had abandoned any idea or purpose of purchasing the property on the terms named by Pitts & Weeks, and had given up the intention of buying the property, when another party approached him, stating that he was a friend of both Mr.. Neely and Mr. Swain, and thought he' could get them together upon the proposition of purchase, as Mr. Swain desired to sell the property. In pursuance of this suggestion, Mr. Neely got into communication with Mr. Swain, and as a result of their further deliberations Mr. Swain agreed to take two hundred and sixty thousand dollars, and Mr. Neely agreed to give two -hundred and fifty-five thousand dollars. When they separated, Mr. Swain told Mr. Neely, if he desired to take his proposition, to ring him up, and Mr. Neely replied that he had made up his mind, and, if Mr. Swain desired to take his (Neely’s) proposition, Swain could ring him. About a day thereafter Mt. Swain called Mr. Neely and proposed to divide the difference between them, making the ^purchase price two hundred and fifty-seven thousand five hundred dollars, which proposition Neely accepted. The transaction was closed up on this basis, after which Messrs. Pitts & Weeks demanded a commission of five thousand [594] dollars, which, was refused, and suit was brought, and the case submitted to the jury, and verdict rendered against Swain as above stated, from which appeal is prosecuted here. After a careful consideration of ithe record, we have reached the conclusion that the appellees had not procured ,a purchaser for the appellant on the terms named in the contract. We think there is no dispute on the evidence of the fact that Neely had abandoned the idea of buying the property on any proposition made through Pitts & Weeks, and that they never procured ,a purchaser within the provisions • of the letter of October 27, 1917, above set out. The party who finally brought Neely and Swain together was not connected with Pitts & Weeks, and it was through the efforts of this party that the final sale was made. It will he noted that the compensation was to he a fixed sum, and not a percentage of the sale made. We think it was the purpose of the parties that this commission would he paid in the event that the sale was made on the price named in the letter, or on such price as was agreed upon between the parties after being so brought together, but before the negotiations were broken off. After the negotiations were broken off, and the parties had abandoned all expectations of making any trade a new factor entered the negotiations, separate from and independent of Pitts & Weeks, and it was through this party that thev sale was finally consummated. We do not think that it can be gathered from the record of this case that the final deal between Swain and Neely was made for the purpose or with the object of defeating Pitts & Weeks of a commission, but we think on the evidence in this record that the negotiations instituted by Pitts & Weeks ended in a failure to make a. sale, and that the subsequent deal was made without reference to the activities of Pitts & Weeks. [595] We think, therefore, it was error for the court below to refuse to grant a peremptory instruction for the defendant below, appellant here, and the judgment of the lower court will he reversed, and judgment entered" here for appellant. Reversed, and judgment rendered.'