Opinion
No. 30307.
January 2, 1933. Suggestion of Error Overruled January 16, 1933.
1. SCHOOLS AND SCHOOL DISTRICTS.
Plaintiff held required to procure agency contract before he could secure rights enforceable under statute requiring school book contractor not to give one applicant for selling agency advantage over another (Code 1930, section 6811).
2. SCHOOLS AND SCHOOL DISTRICTS.
School book contractor held not required to award agency contract to any applicant giving contract and bond, but had right to select its own agents (Code 1930, section 6811).
3. EQUITY.
Chancery court did not have jurisdiction to force school book contractor to execute agency contract to applicant therefor, and cancel agency contract already made.
4. EQUITY.
Chancery court cannot make contract or fix terms thereof.
APPEAL from chancery court of Humphreys county. HON. J.L. WILLIAMS, Chancellor.
Watkins, Watkins Eager, of Jackson, for appellants.
This suit is based entirely on section 6811 of the Mississippi Code of 1930.
Before the complainant can maintain this suit he must show a vested indefeasible right to the appointment as agent upon his making application, and offering to enter into the contract and to furnish sufficient bond. Certainly, under any construction placed on the language of the above section of the Code, the contractor, School Book Supply Company had a certain amount of discretion.
It is a well settled and established principle of equitable jurisdiction that a court of equity will not compel the parties to enter into a contract, and will not attempt to write a contract for any two parties who are sui juris.
Phillips v. McItrath, 217 N.W. 420; Amick v. Huky, 235 N.W. 859, 254 Mo. 37; Terry v. Michalak, 3 S.W. 701.
The courts have no power to make contracts for people, and then request them to perform them. They can only require parties to contracts to specifically perform the contracts they themselves made. This is a fundamental law, and no authority is needed for it.
Fairley v. Strange, 98 S.E. 135.
There being no agreement for a written lease the court cannot require Mr. Copeland to execute a written lease. The courts may require a person to perform a contract he has made. There was no agreement for a written lease and the court is powerless to make one.
Workman v. Copeland, 110 S.E. 526.
The general rule is that, where the court is compelled to enlarge upon negotiations to complete a contract for the sale of real estate, specific performance cannot be had.
Telford et al. v. Ring, 191 P. 179.
The complainant, the appellee, had no vested right in and to the appointment of the agent for the appellant, School Book Supply Company, and the statute upon which his suit is based, section 6811 of the Mississippi Code of 1930, does not give him any right whatsoever.
The School Book Supply Company is vested with a discretionary power. They would have the right to select their agent from the applicants. Not only that, they would have the authority and would be required by the statute, if none of the applicants were suitable to take step to have local merchants who they did deem suitable make application and tender a contract and bond. This would not be because the School Book Supply owed any obligation to any of the individual applicants, or to any other individual citizen, but it does owe a duty to the people and to the Legislature.
Louis Cochran and W.M. Denny, both of Jackson, for appellee.
There shall also be maintained in each county in this state two or more agencies for the distribution of the books contracted for and one of the distributing points shall be the county site and where there are two sites in the county a distributing point shall be maintained at each; and said agencies shall sell to all persons desiring to purchase said books, to the patrons of the public school; and the contractor shall make arrangements with two or more booksellers or merchants in towns of two thousand or more inhabitants that they may apply for agencies to handle and distribute the books at said places; provided, that such applicant for any agency shall execute and tender to said contractor a valid contract and bond conditioned for the faithful and efficient performance of his trust as agent of said contractor; and provided further, that said contractor and said applicant for said agency agree as to the terms and conditions of said agency, or contract, and the amount of said bonds, and it shall be unlawful for said contractor, either directly or indirectly to give any applicant complying with the provisions of this article any advantage over another in the contract or terms of such agency.
Section 6811, Code of 1930.
Appellant Book Supply Company was vested merely with the discretion to determine whether appellee was of the character regarded as suitable for the agency by the statute.
22 R.C.L. App. 613, 614, sec. 11.
Agreements which are entered into for the purpose of preventing competition and bidding for public work are contrary to public policy and cannot be enforced, as they tend to restrain the natural rivalry and competition of the parties and thus produce a result disadvantageous to the public.
22 R.C.L. 611, sec. 9.
The granting of the agency to Pieri under the circumstances of the case was in violation of that part of section 6811 of 1930 Code prohibiting the giving advantage to one applicant over another and, because thereof, the granting of said agency to said Pieri was and is void.
All contracts which are in violation of law or public policy, or grow out of an unmoral transaction are void.
Barker v. Justice, 41 Miss. 240.
A court of equity is a court of conscience, and in the exercise of a broad discretion should see that wrong and oppression are not inflicted under the guise of legal procedure, but that justice is done as the very right of each case may demand.
Herring v. Sutton, 86 Miss. 283.
It is one of the usual powers of a court of equity to correct the defective execution of a power so as to effect the object designed by it.
McCaleb v. Prodat, 25 Miss. 257.
In the construction of statutes, the purpose and intent of the entire act shall be construed to be the meaning and effect thereof.
Grand Gulf Bank v. Archer, 8 S. M. 151; Koch v. Bridges, 45 Miss. 247; Yerger v. State, 9 Miss. 802, 45 So. 849; McIntyre v. Ingraham, 35 Miss. 25.
A casual perusal and consideration of the whole Chapter 163, Code of 1930, demonstrates it seeks to prevent and eliminate fraud from each and every phase of the school law under consideration. The chapter mentioned covers the subject of schools from the beginning to the end and such section 6811 is but a part, or parcel, of the whole of said Chapter 163.
The provision in the said section 6811 providing that it shall be unlawful for said contractor, either directly or indirectly, to give any applicant complying with the provisions of this article any advantage over another in the contract or terms of such agency, if restricted merely to the form and contents of the contract to be executed between the parties, is not only a departure from the context and palpable purpose and intent of the act but will be, in effect, an amendment thereto that the Legislature has not seen fit to adopt.
In all state institutions the first applicant, if qualified, acquires an instant and vested right.
The chancery court has power to determine Sevier's right to the agency.
Hurley v. Board of Mississippi Levee Commissioners, 76 Miss. 141, 23 So. 580; Herring v. Sutton, 86 Miss. 283.
Argued orally by W.H. Watkins, Jr., for appellant.
The appellee, Sevier, was complainant in the court below, and filed a bill in the chancery court of Humphreys county, where Sevier and Pieri both lived, against Pieri and the School Book Supply Company, a corporation of Jackson, Hinds county, Mississippi, for the purpose of canceling a contract between the School Book Supply Company and Pieri, and to force the School Book Supply Company to make a contract with the complainant.
The School Book Supply Company had a contract to supply school books to the schools of the state, and was required to have at least two agencies, or agents, in each county from whom school books could be obtained for use in the public schools.
In Humphreys county the School Book Supply Company entered into a contract with Turner Bros., at Belzoni, Mississippi, and had an application from a man named Weiss in Belzoni, for the other agency in that county. Weiss' application had been filed, but not approved, and no action had been taken thereon, although the schools were in operation and books were being sold by Turner Bros.
Sevier, in November, 1930, took up with the School Book Supply Company the proposition of obtaining the other agency in Belzoni, Mississippi. The School Book Supply Company, by its vice president and general manager, acknowledged receipt of the application, and stated that it would be considered when the matter of agencies for the counties was taken up; but the writer discouraged Sevier, by a letter to him, about taking an agency, and later went to Belzoni and had a conference with Sevier in which he sought to have him withdraw his application, stating that it would be an expensive matter to the company to keep two agencies there, and especially two agencies, as these were, that were unfriendly to each other, there being some business hostility between Turner Bros. and Sevier. Finally, the business manager told Sevier that he would not give him a contract, and that there was but one way by which they could be forced to do so, and that was by mandamus. A mandamus suit was filed by Sevier, or at his instance, in Hinds county, to compel the establishment of two agencies for school books at Belzoni, it being a municipality of over two thousand inhabitants when this suit was filed.
The president of the School Book Supply Company called Pieri over the 'phone and suggested to him that he make application for the other agency, which he did, tendering a contract and bond, and the agency contract was made with Pieri.
Sevier conceived the idea that he had a right to a contract by virtue of having made application and tendering contract and bond prior to Pieri, and filed suit, as above stated.
Section 6811, Code of 1930, is the statute involved in this matter. It will be noted from reading this section that it provides that there must be "two or more agencies for the distribution of the books contracted for and one of the distributing points shall be the county site and where there are two county sites in the county a distributing point shall be maintained at each; and said agencies shall sell to all persons desiring to purchase said books, to the patrons of the public schools; and the contractor shall make arrangements with two or more book sellers or merchants in town of two thousand or more inhabitants that they may apply for agencies to handle and distribute the books at said places; provided, that such applicant for any agency shall execute and tender to said contractor a valid contract and bond conditioned for the faithful and efficient performance of his trust as the agent of said contractor; and provided further, that said contractor and said applicant for said agency agree as to the terms and conditions of said agency, or contract, and the amount of said bonds; and it shall be unlawful for said contractor, either directly or indirectly, to give any applicant complying with the provisions of this article any advantage over another in the contract or terms of such agency."
The appellee relied upon the latter part of the statute, that it "shall be unlawful for said contractor, either directly or indirectly, to give any applicant complying with the provisions of this article any advantage over another."
In our opinion, the bill was not maintainable. The appellee (complainant below) acquired no rights enforceable in the chancery court or in any other court.
Before a person can secure a contract, or secure rights enforceable at law under this statute, he must procure an agency contract. The School Book Supply Company had a right to select its own agents. It was under duty to select the number of agents required by law, but it had the right to select the persons to act as such agents.
The provision in the statute relied upon by the appellee that it shall be unlawful for said contractor to give any applicant any advantage over another is to prevent the giving of more favorable terms to one over another, after the agency has been approved by the contractor. It prevents the making of more favorable contracts with one than with another; but does not give any person the right to secure an agency.
The contractor in the case at bar, the School Book Supply Company, did not have to award the contract to any applicant who signed a contract and gave bond, but it had the right to select the persons with whom it was to do business, as to type and character, and to select people who should exercise discretion in promoting business, and lighten the expenses of the contractor in conducting the agency.
The president of the School Book Supply Company found, in this case, that hostility existed between Turner Bros. and Sevier. He testified that this condition would entail additional expense upon the School Bank Supply Company in keeping two agencies at Belzoni fully stocked at all times; that the condition which existed would prevent one agency from securing supplies from the other when an emergency arose; that the condition, as he found it, would require the company to keep, at all times, all books in each store. And further that the rivalry and ill feeling between Turner Bros. and Sevier would injure business, and he thought it would not be desirable to have these two firms, who were hostile to each other, made the only two agencies in Belzoni.
If the complainant had a correct theory about the case, he still would not be entitled to maintain this suit, because another applicant had filed ahead of him, and his application would be entitled to as much respect as that of the complainant.
However, the School Book Supply Company, as above stated, was not compelled to accept a contract tendered to it, although sufficient in form and secured by bond. It had the right to select its own agents.
The chancery court, in our opinion, could not coerce the appellant, the School Book Supply Company, into contracting with the complainant, nor could it cancel Pieri's contract.
We do not pass upon the question as to whether the suit, if maintainable, would have to be brought in Hinds county where the corporation, the School Book Supply Company, is domiciled. In our opinion, under no conditions disclosed by the record, did the chancery court have any jurisdiction at all, because the chancery court cannot make contracts. The parties themselves must do the contracting. The chancery court cannot fix the terms of contracts, that must be done by the parties, and that was not done here, and constitutes an insuperable barrier to the complainant's maintaining this suit.
The judgment of the court below will be reversed, and the bill dismissed.
Reversed, and bill dismissed.