Petitioners are the Williams Investment Company, a corporation domiciled in the city of New Orleans, La., and Frank R. Bishop, *Page 1055 William Troescher, Edward H. Pedeaux, Dr. Euclid J. Richard, and Hardy F. Mulligan, all residents of that city.
On March 1, 1926, petitioners entered into an agreement with each other, and with defendants, Rozell McWilliams, a real estate broker, and Mrs. C.B. McWilliams, his wife, residents of the city of New Orleans, to form a syndicate to purchase the property known as the Lyons property, situated in Hancock county, Miss., for the sum of $30,000, partly for cash and partly on credit.
Each of the petitioners deposited with Rozell McWilliams, in part payment of the purchase price, 10 per cent. of his subscription, amounting to the aggregate sum of $3,000, and the syndicate agreement called upon petitioners to accept title when "a good and merchantable title is ready."
Petitioners have sued McWilliams and his wife, in the civil district court for the parish of Orleans to cancel and annul the syndicate agreement, and to recover the amount deposited with McWilliams, real estate broker, on the ground that "a good and merchantable title" to the "Lyons property" was not furnished petitioners by its owner within a reasonable time, and that petitioners therefore are entitled to have the agreement canceled, and to have returned to them the 10 per cent. deposited by them with McWilliams, real estate broker.
Defendants resist payment of the $3,000 deposited with McWilliams by petitioners as part payment of purchase price, on the ground that "a good and merchantable title" was tendered petitioners by the owner within a reasonable time, and that defendants have the right to insist upon petitioners' accepting *Page 1056 title, and paying the purchase price. Defendants also resisted payment of the deposit upon the further ground that McWilliams had authority, as a real estate broker, and mandatary of both parties, petitioners and the prospective seller, to obtain title, and that he had expended the amount of the deposit in purchasing the adverse claim of C. Greer Moore to a part of the property, thereby perfecting the title.
Judgment was rendered upon the merits in the lower court in favor of defendants, Rozell McWilliams and his wife, rejecting petitioners' demands at their cost.
From this judgment petitioners have appealed.
In our opinion, the plea to the jurisdiction of the civil district court is well founded and is sustained.
Judgment of lower court set aside, and plea to jurisdiction sustained, and plaintiffs' suit dismissed at their costs.
O'NIELL, C.J., and ROGERS, J., are of the opinion that the court had jurisdiction.
On Rehearing.