Kelley v. Peacock , 115 Miss. 555 ( 1917 )

Cook, P. J.,

delivered the opinion of the court.

This is an appeal from the circuit court of LaPayette Qounty from a judgment in favor of the appellee in the sum of five hundred and ten dollars, which judgment was rendered at the September, 1915, term of said circuit court.

The case arose over a sale of land belonging to the appellant, the appellee claiming to have an option contract with the appellant, and that he had procured a purchaser for the land at a price of thirteen hundred dollars in excess of the price named in the option, and that he was entitled to recover the sum of thirteen hundred dollars, plus three hundred and sixty dollars representing five per cent commission on the option price, making a total of one thousand six hundred and sixty dollars.

The option claimed by the appellee, and upon which his suit was based, is as follows: ,

'“In consideration of the sum of one dollar cash, and services to be rendered, I hereby agree to sell to J. D. Peacock, or such person as he may name when requested, the following property: My place containing four hundred and eighty acres, lying five miles North of Water Valley, in LaPayette county, Miss., known as the Kirk-wood place, improved as follows: five houses, two barns, three hundred acres open land, two hundred cultivated, balance in pasture with forty acres in bermuda — at and for the price of seven thousand two hundred dollars, one-half cash and balance in two years at ten per cent interest. This contract is to continue in full force and effect until I shall have given sixty days’ notice in writing terminating it. And I authorize the said J. D. Peacock, by his attorney or manager, to bind me by contract of sale of said land on above terms, as my sole agent until this .authority is terminated above.

“I further agree to pay to the said J. D. Peacock a commission of five per cent, on the amount for which the above property may be sold during the time said property may remain with him.

‘ ‘ [Signed] A. T. Kelley.

“Witness: Ethel Wood.

■“December 12, 1908.”

To the declaration appellant, defendant below, pleaded tbat the contract sued on had been rescinded by mutual consent of the parties; tbat the contract was without consideration; tbat appellee bad not sold the farm under the terms of the contract; and tbat the sale was made by appellant; and tbat this sale was net identical with, nor did it carry out the terms of, the contract sued on.

.On the issue tbat the contract bad been rescinded before appellant sold the land, the evidence was in sharp conflict, and the jury having rendered a verdict for plaintiff, the conflict was resolved against the defendant.

Appellant earnestly contends that Everman v. Herndon, 71 Miss. 823, 15 So. 135, is decisive of this case; that the plaintiff did not sell the land, but the land was sold by appellant and for a greater price than the contract price named in the option contract given to appellee.

We are unable to see any similarity between the case of Everman v. Herndon, supra, and the instant ease. The Everman Case was a suit for the specific performance of a contract, and the court merely held that the contract performed by the complainant was not identical witb/ nor did it carry out the terms of, the contract sued on. the contract in the present case is a typical contract between a landowner and a real estate agent, whereby the minimum price is agreed upon, and the commissions which the agent is to receive if be sells, or is instrumental in bringing about the .sale.

The plaintiff’s evidence tended to prove that be brought the owner and the buyer together, and that the owner sold the land because of the work of the plaintiff. True the sale actually made was for a greater sum than the price fi^ d in the contract, but it is also true tbat appellant agreed to pay appellee “a commission of five per cent, on the amount for which the above property may be sold.”

The foregoing part of tbe contract fixed the amount for which tbe owner agreed to sell, and it seems to us that appellant is not in a position to claim that be owes appellee nothing because he received a greater sum of money than he was willing to take for his property when he entered into the contract with the agent.. ‘ ‘ The' laborer is worthy of his hire.”

The jury found the facts in plaintiff’s favor, but we think the verdict was' for too much. The verdict was for five hundred and ten dollars, when the verdict should have been for four hundred and twelve dollars and fifty cents, this being five per cent, of the amount which appellant received for his land.

If appellee will remit the excess, the case will be affirmed at appellee’s costs; otherwise the case will be reversed, and remanded for a new trial.

Affirmed conditionally.