Giglio v. Saia , 140 Miss. 769 ( 1926 )

^* Headnote 1. Landlord and Tenant, 35 C.J., Section 122; Specific Performance, 36 Cyc., pp. 587, 588; On validity and effect of stipulation in contract to renew on terms to be agreed upon, see note in 32 L.R.A. (N.S.) 201; On validity and enforceability of provision for renewal of lease at rental not determined, see note in 30 A.L.R. 572; 16 R.C.L. 886; 4 R.C.L. Supp. 1083; 5 R.C.L. Supp. 906. This is an appeal from a decree dismissing an original bill and dissolving an injunction issued thereon.

In January, 1919, the appellee leased to the appellant a "store building" for a period of five years by a written contract, one of the provisions of which is that:

The "party of the second part is to have the right and privilege of renting said store for another period of five years at the termination of this contract, upon such terms and for the payment of such rent as may be agreed upon between the parties hereto at that time, necessary repairs to be made by party of the first part."

Before the expiration of this lease the appellant sought but failed to obtain a renewal thereof from the appellee. He then exhibited a bill of complaint against the appellee in the court below, setting up his claim to the right to renew the lease under the agreement therefor, prayed for the specific performance of this agreement and for an injunction restraining the appellee from interfering with the use of the building by the appellant. The cause was submitted to the court below on bill, answer, and proof, and a final decree was rendered dismissing the bill, dissolving the injunction, and awarding the appellee an attorney's fee as damages for the wrongful suing out of the injunction.

The specific performance of a contract will not be decreed unless it is certain in its terms. Montgomery v. Norris, 1 How. 499; Nickerson v. Land Co., 118 Miss. 722, 80 So. 1. Tested by this rule the specific performance here sought cannot be decreed, for the renewal agreement not only does not set forth the terms on which the appellant may rent the building for another period of five years, but, on the contrary, expressly provides that he may do so "upon such terms and for the payment of such rent as may be agreed upon between the parties hereto." This leaves everything pertaining to the renewal open for determination by the parties thereto except the period of time for which it is to run. That is to say, they must agree on not only the amount of rent to be paid, but upon the conditions, covenants, and limitations on which the lessor may be willing to renew the lease. Renewal agreements much more specific than this one, in that they leave only the renewal rental to be fixed by future agreement between the parties, have generally been held unenforceable and void for uncertainty and indefiniteness. See note to Young v. Nelson, 121 Wash. 285, 209 P. 515, 30 A.L.R. 568. See, also, 16 R.C.L. 886; 35 C.J. 108, 109; Howard v.Tomicich, 81 Miss. 703, 33 So. 493.

The appellant relies on the case of Pugh v. Gressett,136 Miss. 661, 101 So. 691, 38 A.L.R. 678. That was a suit, not to enforce the specific performance of a contract, but to collect the price agreed to be paid for certain shares of stock. Gressett was the owner of twenty shares of stock in a corporation of the affairs of which he was in control as a director and general manager thereof. He agreed to sell the twenty shares of stock to Pugh and Howard, and to turn the management of the corporation over to them, and Pugh and Howard agreed, in the language of the opinion:

"To purchase from the complainant the said twenty shares of the capital stock of said company and pay him therefor the sum of ten thousand dollars, four thousand dollars of which purchase price was to be paid upon delivery of the stock, and the remainder of the purchase price to be settled for in the note or notes of the defendants, to be executed in favor of the complainant in negotiable form, and of such dates of maturity as that said notes would pass in the usual channels of banks and banking as negotiable paper."

After the oral agreement was made Pugh telegraphed Gressett as follows:

"Howard comes to Meridian today to take charge of the affairs of the company in line with agreement. Also we are to buy your stock for ten thousand dollars. Terms to be agreed on by October fifteenth."

To which telegram Gressett responded by telegraph as follows:

"Telegram received. I confirm sale twenty shares Meridian Chero-Cola Bottling Company stock to you for ten thousand dollars. Terms and payment to be arranged negotiable by October fifteenth."

Pursuant to this oral agreement and these telegrams, Gressett turned the management of the corporation over to Howard and Pugh, who took entire charge of the affairs of the corporation but declined to accept and pay for the twenty shares of stock therein. The main object which Howard and Pugh had in view in purchasing this stock was to obtain the management and control of the corporation, and the management and control thereof was turned over to them by Gressett because of their agreement to purchase his stock in the corporation. Gressett then sued Pugh and Howard for the recovery of the price agreed to be paid for the stock. One of the questions presented to the court, on the decision of which the appellant here rests, is whether there was a sufficient meeting of the minds of the parties to make a complete contract. The court, in deciding this question, stated that the telegrams, when viewed in the light of the previous negotiations of the parties, were sufficient to show a complete contract for the sale and purchase of the stock. The court did not decree the terms of payment on which the stock should be paid for in accordance with the parol agreement between the parties, which was four thousand dollars in cash and six thousand dollars in notes, but rendered a money judgment for the entire purchase price of the plant, resting its decision on the fact that Howard and Pugh had accepted the management and control of the corporation and therefore must pay for the stock therein, the agreement to purchase which induced Gressett to turn the corporation over to them; the language of the court in so holding being as follows:

"The defendants having accepted the plant and the management thereof, they must pay the consideration which they agreed to pay."

We do not understand that case to have qualified the rule of specific performance hereinabove announced. The court there said, to which we of course adhere, that that is certain which can be made certain, but that maxim is of no avail here, for we are without any guide whatever as to what the terms of the renewal should be.

The attorney's fee should not have been allowed. The injunction was merely an incident to the main relief which the appellant sought — that was the specific performance of the contract — and was not dissolved until the bill of complaint was dismissed after a trial of the case on its merits, and it does not appear from the record that any services were rendered by the appellee's counsel in obtaining a dissolution of the injunction that were not necessarily rendered in defending the case on its merits.Mims v. Swindle, 124 Miss. 686, 87 So. 151; Howell v.McLeod, 127 Miss. 1, 89 So. 774.

The award to the appellee of an attorney's fee will be eliminated from the decree, but in all other respects the decree will be affirmed. The appellant will be taxed with two-thirds of the costs of this appeal, and the appeal with one-third thereof.

Affirmed in part; reversed in part.