Opinion
No. 33866.
November 13, 1939.
1. APPEAL AND ERROR.
Where appeal was perfected within required time, and chancellor without objection ordered that transcript of testimony taken by court on original hearing and then on file be considered part of the record, appellant was entitled to have the Supreme Court determine whether decree was properly rendered against defendant on bill of complaint, decree pro confesso, and proofs offered at original hearing.
2. FRAUDS, STATUTE OF.
A receipt for down payment on purchase price of lots was insufficient under the statute of frauds as a memorandum of contract of sale, in absence of statement therein as to the county and state in which lots were located or of indication that it was made on behalf of owner of the lots (Code 1930, sec. 3343).
3. APPEAL AND ERROR.
The question may be raised in the Supreme Court for the first time that bill of complaint fails to state a cause of action.
4. SPECIFIC PERFORMANCE.
In action for specific performance of contract to sell city lots and in the alternative for damages, where alleged contract was entered into between real estate agent and prospective purchaser and alleged memorandum of contract referred to notes and deed of trust, a tender of the notes, with the complaint, was essential to put vendor in default, in absence of allegation that notes and deed of trust had been once tendered and their acceptance refused.
5. APPEAL AND ERROR.
Where it was sought to enforce specific performance of an alleged contract of sale or in the alternative to recover damages for alleged breach thereof, but complaint did not allege that notes mentioned in alleged memorandum of contract were ever executed and tendered to owner or to alleged agent, or that deed of trust mentioned in memorandum had been executed or tendered, and it was not alleged as to whom down payment was paid or that real estate dealer was authorized to receive payment of purchase price, the insufficiency of the complaint to state a cause of action could be raised for the first time in the Supreme Court.
6. BROKERS.
Ordinarily, the authority to act as a real estate dealer for the sale of property does not confer authority on such agent to receive the purchase price of the property sought to be sold.
APPEAL from chancery court of Hinds county; HON. V.J. STRICKER, Chancellor.
Harold Cox, of Jackson, for appellant.
The final decree of the lower court is not supported by the bill of complaint and evidence.
The contract sued on does not comply with requirements of Statute of Frauds and no case is proved by evidence.
Sec. 3343, Miss. Code 1930 (Statute of Frauds); Sturm v. Dent, 107 So. 277, 141 Miss. 648; Kervin v. Biglane, 110 So. 232, 144 Miss. 666; Nickerson v. Fithian Land Co., 80 So. 1, 118 Miss. 722; Howie v. Swaggard, 107 So. 556, 142 Miss. 409; Fowler v. Nunnery, 89 So. 156, 126 Miss. 510; Box v. Stanford, 13 S. M. 93.
There was no tender with suit for specific performance.
Morton v. Varnado, 90 So. 77, 127 Miss. 332; Phelps v. Dana, 83 So. 745, 121 Miss. 697; Griffith's Chancery Practice, Sec. 522 and Note 6; Shelton v. Usner, 110 So. 504, 144 Miss. 693.
In the case at bar, the appellant was privileged to demur, or not having answered, she cannot be prejudiced by a complaint which plainly states no cause of action. That the Statute of Frauds may be raised by demurrer in the Chancery Court is held in Firemans' Fund Insurance Company v. Williams, 154 So. 545, 170 Miss. 199.
Craft v. Lott, 40 So. 426, 87 Miss. 590.
The contract does not identify parties, state terms of sale, or description of property to be conveyed.
Frank v. Eltringham, 3 So. 655, 65 Miss. 281; McGuire v. Stevens, 42 Miss. 724; 25 R.C.L. 651 and 655; Queen v. Barnett, 89 So. 819, 127 Miss. 66.
No attorney's fees are allowable under the pleadings and proof in this case.
Cooper v. U.S.F. G. Co., 188 So. 6; Marrs v. Germany, 100 So. 23, 135 Miss. 387.
The decree is subject to review by the court after the term under stated circumstances.
Authority to file a bill of review is found in Section 472, Mississippi Code 1930. The period within which such review may be had is limited by Section 2322, Code of 1930, to two years.
54 C.J., Sec. 11, pp. 752-753; 54 C.J., p. 761; Coffin v. Abbot, 7 Mass. 252; Bettman-Dunlap Co. v. Gertz, 116 So. 299, 149 Miss. 892; Enochs v. Harrelson et al., 57 Miss. 465; Knowland v. Sartorious, 46 Miss. 45; American Bank v. Johnson, 71 So. 808, 111 Miss. 516.
What is the effect of the untimeliness or failure of the appellant to interpose these defenses to the suit at the return term?
Our contention at this point is that the appellee having failed to state a case is powerless to prove a case, and that the court was powerless to give appellee relief to which he was not entitled under his pleadings.
Spears v. Cheatham, 44 Miss. 64; Penn. Mut. Life Ins. Co. v. Keeton, 49 So. 736, 95 Miss. 708; Metcalfe v. Wise et al., 132 So. 102, 159 Miss. 54; Griffith's Chancery Practice, Secs. 30, 564, 567, 612.
The appellee is in the attitude of having sued on a meaningless contract which imports no obligation whatever on the appellant to do anything. The so-called contract in the respects indicated is too vague and uncertain to be enforced if it had been signed by the appellant herself. But it was not signed by appellant, and it was not signed by Willis Brown who was said to have been her agent. The bill did not say that Mrs. Brown was appellant's agent, and nowhere therein is it stated that Brown himself was ever authorized in writing, as required by the statute, to sign such a contract for appellant. The statute plainly says that: "An action shall not be brought whereby to charge a defendant" with any responsibility whatsoever for failure to carry out a contract which does not in every such respect comport with the requirements of this state. Sec. 3343, Code of 1930.
The appellant was plainly not negligent in failing to interpose her defense of the statute in the lower court. She was prevented from doing so by a physical and mental condition beyond her control. The Chancery Court has the power and authority to grant new trials at law for circumstances present in the case at bar.
Robb v. Halsey, 11 S. M. 140; Lucas v. Waul, 12 S. M. 157; 34 C.J. 302, 313, 316.
It is no answer to appellant's attack on the decree of the lower court that she did not interpose the Statute of Frauds as a defense to the action in the lower court, regardless of circumstances which prevented her from doing so.
Metcalf v. Brandon, 58 Miss. 841; Singletary v. Ginn, 121 So. 820, 153 Miss. 700.
E.W. Stennett, of Jackson, for appellee.
The final decree is supported by the pleadings and evidence. Appellant cannot now take advantage of the Statute of Frauds.
Box v. Stanford, 13 S. M. 93; Metcalf v. Brandon, 58 Miss. 841; Singletary v. Ginn, 153 Miss. 700, 121 So. 820; Harvey v. Daniels, 133 Miss. 40, 96 So. 746; 27 C.J. 371, Sec. 448.
No tender was necessary. In all the authorities cited by appellant on the proposition of a tender, the vendee seeking to require specific performance was in default and owed the vendor either all or a part of the purchase price. In the case at bar, the complaining vendee had done all that was or could be required of him. He had paid all the down payment, as the contract required, and then had paid more, and then had executed and delivered to the vendor the notes called for. He sued for and recovered the money paid to the vendor and damages as sued for for a breach of the contract. Tender what? The suit was brought about by reason of the fact that the complainant had already tendered and paid money which was and is wrongfully withheld by appellant, and having learned his lesson, his tendering days were over. Furthermore, this is a question which should have been raised by plea, answer, or demurrer, and having failed to do so, appellant cannot now complain after final decree.
Ambiguity of contract, if any, should have been pleaded below.
The attorney's fee was properly allowed.
A. V. Ry. v. Bolding, 69 Miss. 255, 13 So. 844; Bates v. Strickland, 139 Miss. 636, 103 So. 432; McIntosh v. Munson Road Machinery, 167 Miss. 546, 145 So. 731.
Bills of review can be filed in this state for (1) error of law apparent on the face of the decree or pleadings, exclusive of the evidence and (2) for newly discovered evidence. The petition for authority to file bill of review in this case was for errors apparent on the face of the record, exclusive of the evidence. No such errors were pointed out in the bill, and for that reason the demurrer thereto was sustained.
Bills of review for error apparent on the face of the record rarely ever come before this court — none are found in the later cases.
Griffith's Chancery Practice, Sec. 635; 54 C.J. 761, Sec. 35.
Failure to appear admitted facts. Appellant negligently failed to appear. There was a complete failure to appear before a final decree was entered. The petition for leave to file bill of review fails to present a case of "excusable neglect."
No fraud was charged in appellant's petition. The appellant failing to show any mistake, accident, or misfortune as would entitle her to a review of the final decree, now attempts to have the decree reviewed on the ground of fraud. It is too well settled for dispute that if fraud had been set up in the petition for review, the demurrer which admitted it should not have been sustained. But allegations of fraud must be definite, specific, and must be alleged as facts and not as conclusions of the pleader.
This is an appeal granted with supersedeas from both a final decree of the Chancery Court of Hinds County, awarding appellee damages in the sum of $486 against the appellant for breach of an alleged contract made by a real estate agent for the sale of certain lots to the appellee in the City of Jackson, belonging to the appellant, and also from a decree sustaining a demurrer to a petition of the appellant to be allowed to file in the court below a bill of review in said cause, and which later decree dismissed the petition in that behalf. The appeal was perfected within the time required by law after the date of the final decree awarding the damages aforesaid, and so as to entitle the appellant to have the question determined by this court as to whether or not the original decree was properly rendered against her upon the bill of complaint, decree pro confesso and proof offered at the original hearing, the chancellor having ordered, without objection, that the transcript of the testimony taken by the court on the original hearing and then on file be made and considered as a part of the record herein.
The bill of complaint filed by the appellee, and upon which the decree pro confesso was taken and testimony offered to support the claim for damages, alleged in substance that the appellant, during the year 1937, owned certain lots in a subdivision near the City of Jackson, and that she engaged the services of one Willis Brown, a real estate dealer, to dispose of and sell said lots, making the said Brown her agent in that behalf. That, on the 9th day of April of that year, the said Willis Brown, acting as the agent aforesaid, entered into a contract with the appellee for the sale of the said lots to him at the price of $600, of which the sum of $50 was to be a cash payment and the remainder to be represented by thirty-six promissory notes of $10 each, payable monthly, and the balance to be represented by one promissory note due and payable three years after date, bearing interest at six per cent per annum from date. That, a note or memorandum of said sale was made at the time, and a copy of which alleged contract of sale was filed as an exhibit to the bill of complaint and is in the following words and figures to-wit:
"Received of Mr. Mikell the sum of $15.00 to apply on purchase of Lot 64-Block B, of Pine Acres, and also Lot 64 extended through Lot 45 of Block B — sold for $600.00, when $50.00 paid. Deed given and 36 notes at $10.00 per month and one (1) note for balance due three yrs.
"All at 6% and secured by Deed of Trust.
"April 9th 1937.
"Willis Brown "By Mrs. Willis Brown."
It will be observed that the receipt above set forth, referred to in the pleading as a memorandum of the contract of sale, does not state in what county and state the lots are located, and neither does it purport to be made on behalf of the appellant, Mrs. Kathleen K. Paine, as the owner of the property in question. That the alleged contract of sale was therefore insufficient under the Statute of Frauds, Section 3343, Code of 1930, to obligate the appellant to convey the lots to the appellee. It is contended, however, that since the appellant did not appear and plead the statute, Section 3343, supra, the point cannot be raised here on appeal.
However, as was held by this Court in the case of Pease Dwyer Company v. Somers Planting Company, 130 Miss. 147, 93 So. 673, the question may be raised here for the first time that the bill of complaint fails to state a cause of action. The suit is one to enforce specific performance of the alleged contract of sale or for relief in the alternative by a decree for damages for the alleged breach thereof. There is no allegation contained in the bill of complaint to the effect that the notes mentioned in the memorandum were ever executed and tendered to the appellant or other alleged agent, Willis Brown, nor is there any mention of the deed of trust having been executed or tendered as security on the lots for the payment of the deferred portion of the purchase price which was to be represented by the notes. A tender of the notes, with the pleading, was essential in order to put the appellant in default so as to entitle the appellee to specific performance or to the recovery of damages for a breach of the alleged contract, in the absence of an allegation that the notes and deed of trust had been once tendered and their acceptance refused. It was only alleged that the sum of $55 on the purchase price had been paid, and it was not alleged as to whom it was paid or that the said Willis Brown, as a real estate dealer, was authorized to receive payment of the purchase price agreed upon between himself and the appellee. Ordinarily, the authority to act as a real estate dealer for the sale of property does not confer authority upon such an agent to receive the purchase price of the property sought to be sold.
In support of his claim for damages for the alleged breach of the contract, the appellee testified, as the only witness in the case, and his testimony shows only that he paid the sum of $55 on the purchase price, and that the deed was never delivered. His testimony fails to disclose that either the notes or the deed of trust were executed and tendered to anyone. He did state that it became necessary for him to rent another residence on account of being unable to build a home on these lots, and that he was compelled to pay out the sum of $150 in rent. Also, that he had improved the lots at an expense of $200 subsequent to the making of the alleged contract of sale, and without having obtained a deed from the owner. The decree appealed from awarded him damages for these several items, plus an attorney's fee of $75, making the total sum of $486. Some of the items covered did not constitute proper elements of damages, even though the bill of complaint had stated a cause of action for the breach of the alleged contract.
We are of the opinion that no cause of action was alleged in the pleading, nor established by the proof. It follows that the case must be reversed and a decree rendered here for the appellant.
Reversed and decree here for appellant.