Opinion
No. 31167.
April 16, 1934.
LANDLORD AND TENANT.
Lease for filling station could not be canceled by lessor employee because lessee-employer had dispensed with services of lessor-employee as provided in employment contract, where lease contained no provision for its termination in such case, no claim of mutual mistake or fraud was made, nor reformation asked, and interest of lessor-employee was sold at foreclosure sale after beginning of his suit.
APPEAL from Circuit Court of Newton County.
Green, Green Jackson, of Jackson, for appellant.
The lease was already terminated when this decree was entered, because, the complainant had no further rights in the property, and the Louisiana Oil Corporation took the property subject to the rights of the Guaranty Bond Mortgage Company, who, by its foreclosure, cut off any rights in the Louisiana Oil Corporation.
1 C.J. 973.
It is hornbook law no court will concern itself with a moot question. This was the established doctrine in this state and the trial court was bound to observe it and dismiss the bill.
White v. Williams, 132 So. 573; 15 C.J. 920; 3 C.J. 357; Harrington v. Town of Plainview, 6 N.W. 777.
The lease contract being written superseded and/or merged all prior negotiations looking toward a lease.
13 C.J. 597, sec. 616; Case Threshing Machine Co. v. McCoy et al., 72 So. 138; McInnis v. Manning, 95 So. 250; Dowling v. Smyley, 116 So. 294; Johnson v. Guice, 114 So. 409; Kerr v. Calvitt, Walker's Reports, page 115; 27 R.C.L. 529; Restatement of the Law, sec. 237, chap. 9; Germania Life Ins. Co. v. Bouldin, 56 So. 609; Pine Grover Lbr. Co. v. Interstate Lbr. Co., 15 So. 105; Y. M.V.R.R. Co. v. Martin, 48 So. 739; Goff v. Jacobs, 145 So. 728; Martin v. Partee, 121 Miss. 482, 488, 83 So. 673; Sutton v. Cannon, 135 Miss. 368, 100 So. 24.
Amis Johnson, of Newton, for appellee.
A reading of the record together with the actions of the appellant will, we are sure, convince this court that the things involved in this cause are not moot, and that the appellants well realize that real rights are involved in so far as this appellee is concerned.
The complainant in the court below, appellee here, filed his original bill for cancellation, on the theory that while the lease contract sought to be cancelled was regular and complete on its face, yet and nevertheless it was merely one of several contracts simultaneously signed as between appellant and appellee, and to determine just exactly what contract, if any, existed as between said parties, all such contracts so executed must be read together, and the appellant having of its own volition breached and violated one of such separate contracts, going to make up the complete and whole contract as between the parties, the appellee was entitled to a cancellation of the other; specifically the lease as executed unto the appellant.
Argued orally by Marcellus Green, for appellant.
The appellee, H.C. Frye, filed a bill in the equity side of the county court seeking to cancel a lease, in writing, upon certain property described in the bill and leased to the appellant. There was also an instrument of employment by which H.C. Frye was employed by the Louisiana Oil Corporation to manage its business in the territory and the filling station involved herein, under the terms of which either party could terminate the contract of employment on fifteen days' notice.
The theory of the bill for cancellation of the lease is that the employment was to continue as long as the lease existed, and constituted the real consideration for the lease. No such agreement appears to be contained in the lease or in the contract of employment.
After this suit was filed, a deed of trust which the appellee had given upon the property covered by the lease was foreclosed, and Frye's interest in the property was purchased at such foreclosure sale.
A motion was made to dismiss the suit as a moot question on account of such foreclosure, which motion was overruled, the county court entering an order canceling the lease, from which an appeal was taken to the circuit court, where the judgment of the county court was affirmed.
The prayer of the bill is as follows: "Wherefore, complainant brings this his suit and prays that process issue to the defendant, Louisiana Oil Corporation, directing it to be and appear before this honorable court at the March, 1932, term thereof, and on the 1st day thereof, then and there to plead, answer or demur to this bill of complaint, and that on final hearing hereof, that a decree may be entered canceling and holding for naught the lease heretofore executed by complainant to defendant, and for such other, further and more general relief as unto the court may in the premises seem just and proper."
There were no allegations of mutual mistake in executing the lease, nor anything proven which would justify the court in reforming the contract, and no such relief was specifically asked for.
We think the contract exhibited to the bill was the exponent of their own terms, and that it was not proper to grant the relief prayed for, or any relief; and, consequently, the judgment of the court below must be reversed and the cause dismissed, the costs to be taxed against the appellee.
Reversed and dismissed.