Rogers v. Foley

104 So. 78, 139 Miss. 327, 1925 Miss. LEXIS 133

• Court: Mississippi Supreme Court
• Decided: May 11, 1925
• Docket: No. 24939.
• Status: Published

Opinion

Anderson, J.,

delivered the opinion of the court.

Appellant Mrs. Grace Rainey Rogers, executrix of the will of Paul J. Rainey, deceased, filed her bill in the chancery court of Tippah county to enjoin appellee Foley from the further use and occupation of a part of the lands of said estate. Appellee claimed the right to the use and occupation of the land in question by virtue of a written contract of lease for a term of more than a year entered into by him with one O. H. Purnell, claiming to act as authorized agent of said Paul J. Rainey in the execution of said lease. The principal question in the case, and the only one we deem necessary to discuss, is whether or not the lease involved was void under the statute of frauds, section 4775, Code of 1906; section 3119, Hemingway’s Code.

The cause was heard on bill, answer, and proofs, and a decree rendered dissolving the temporary injunction issued in the cause and dismissing the bill and awarding appellee damages for the wrongful suing out of the injunction-. ' ' : ' ■*)

There was sufficient evidence to sustain the finding of fact by the chancellor that Purnell, who executed the lease in question on behalf of the testate Paul J. Rainey, had been authorized by the latter so to do.

It was undisputed, however, that the authority of the agent Purnell was verbal and not written. Appellant’s position is that under the statute of frauds it was not only necessary for the lease to be in. writing, but if executed by an agent, and not by the lessor in person, it was necessary for the authority of the agent to so execute the lease to be in writing signed by his principal.

The applicable part of the section of t-he statute of frauds provides, in substance, that an action shall not be brought whereby to charge a defendant, or other party, upon a contract for the lease of land for a longer period than one year unless the promise or agreement upon which such action may be brought or some memorandum or note thereof shall be in writing (quoting the statute), “and signed by the party to be charged therewith or some person by him or her thereunto lawfully authorised.'’ (Italics ours.) The decisions of the courts in those jurisdictions, construing statutes of frauds expressly requiring the authority of the agent to be in writing signed by the principal, have no application to our statute which has no such requirement. Story on Agency lays down the rule that an agent may be appointed by parol; that this was absolutely indispensable to the exigencies of business, “otherwise the most ordinary transaction would be greatly embarrassed if mot obstructed.” Story on Agency (9th Ed.), section 47. It is useless, however, to discuss the authorities elsewhere. The question is foreclosed by the decisions of this court. In the absence of a provision in the statute requiring that the authority of the agent executing the contract on behalf of his principal be in writing and signed by the latter, the common-law rule prevails, and that is that the authority of the agent to sign the writing on behalf of the principal may rest in parol. Curtis v. Blair, 26 Miss. 322, 59 Am. Dec. 257; Lobdell v. Mason, 71 Miss. 937, 15 So. 44; Hopper v. McAllum, 87 Miss. 441, 40 So. 2; Hutchinson v. Platt, 119 Miss. 607, 81 So. 281.

Affirmed.