Lee v. Greenwood Agency Co. , 125 Miss. 177 ( 1921 )

W. H. Cook, J.,

delivered the opinion of the court.

On a former day of this term the judgment of the lower court overruling a demurrer to the bill of complaint was reversed, and the bill of complaint dismissed, and counsel for appellee now suggests and earnestly insists that we erred in so doing, and especially in denying appellee the right to recover the amount paid out for expenses incurred at the instance and réquest of appellant in procuring^ agreements for tbe cancellation of certain leases on the lands which appellee undertook to sell.

We have given this, record a careful reconsideration, and we adhere to the former opinion, in so far as it denies to appellee the right to recover commissions on the proposed sale. However, it appears from the bill of complaint and exhibits that the lands which appellee undertook to sell were covered by lease contracts, and both parties recognized the necessity of securing an option to cancel these lease contracts in order that appellant might be able to deliver possession of the lands in the event a sale should be consummated. It further appears from the correspondence between the parties that appellant was advised that it would be necessary to incur considerable expense in se-suring the cancellation of these leases, and that he authorized appellee to proceed to secure an option to cancel these leases and to incur the expense incident thereto.

The appellee cannot recover the expenses incurred solely in showing the property and negotiating a sale, but, in negotiating the proposed sale., there was no duty resting on the agent to secure these options to cancel the existing leases, and we conclude that appellee is entitled to recover the expenses incurred for that purpose.

Since the demurrer filed by appellant was general, the former judgment, reversing this case and dismissing the bill, is vacated, and the cause is affirmed and remanded, with directions that appellee be permitted to recover the expenses, if any, incurred in securing options to cancel the existing leases.

Suggestion of error sustained in part and overruled in part.

Sustained in part.

Overruled in part.