Barney & Hines v. Jackson

Brokers. Compensation. Original or collateral promises. Fraud. Statute of frauds. Where a vendor through a real estate agent had agreed with a purchaser for the sale of a parcel of land, and the agent claimed commissions for the sale which the vendor denied, and it was finally agreed that the vendor and purchaser should each pay one-half of the commissions to the agent and the sale was completed. In such case the promise of the vendor to pay the agent one-half of his commissions was not within the statutes of frauds.

Appeal from the circuit court of Sunflower county; Hon. Monroe MgClurg, Judge. Suit by Barney & Hines- against W. T. Jackson. From a judgment for defendant, plaintiff appeals. The facts are fully stated in tbe opinion of tbe court. If appellee agreed to pay one-balf of tbe commission due tbe appellants, in consideration of Mr. W. W. Wieldon selling bim tbe land at a price less than wbat be would otherwise bave sold bim tbe land for; and tbis agreement was made before tbe sale of tbe land was made, as J. H. Hines and W. W. Wieldon said it was, then be is liable; but if bis testimony is true, then be is not liable; and tbe jury, and they alone, under proper instructions given tbem by tbe court, bave tbe right to say whether appellee or Hines and Wieldon was telling tbe truth about it. Tbis case is so- simple, tbe law so well settled, and so plain, that I am not going to take up tbe time of tbis court by citing tbem authority, or arguing things to them that they already know, and have known for that matter, ever since they began the practice of law. I submit, that this case should have gone to the jury, and for the error in the court below in granting a peremptory instruction for the defendant, it should be reversed. It is an undisputed fact that there was an agreement between appellants and W. W. Wieldon to the effect that Wieldon was to pay appellants the sum of three hundred dollars for their services in procuring a buyer for his lands in Sunflower county, Mississippi. While the testimony is conflicting as to whether appellee agreed to pay one-half of this debt which Wieldon was undoubtedly bound to pay under the law, yet we contend that, admitting for arguments sake that he did agree to pay it, he could not be compelled to do so under section 4775 of the Mississippi Code of 1906 and particularly paragraph (a) of said section, because the alleged promise was not in writing. In the deposition of J. H. Hines in answer to interrogatory No. five, it will be seen that he used the following language: “We had arrangements previously made with Mr. Wieldon to pay ns a commission on the sale in the event of a sale to a customer furnished by us.” Now it seems from this that this debt had already been fastened upon Wieldon, and any verbal promise that appellee might have made to pay one-half of Wieldon’s debt would be void and unenforceable under the above-mentioned Code section. We submit that the peremptory charge was properly given.