BEFORE WALKER, C.J.; ROBERTSON AND ANDERSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
In yet another context the Grand Gulf Nuclear Power Plant has spawned litigation. Today's case arises out of a lucrative painting and coating contract. A contracting and consulting firm was and has remained an effective tout on behalf of the successful bidder and its successors. The tout claims he has not been paid the agreed commission and has brought suit. The lower court held for the painting contractor and dismissed the suit.
We hold that there was and is a valid subsisting and ongoing contractual relationship between the tout and the contractor and that the tout has been paid far less than the agreed upon fee. We reverse, render and remand.
Jim Murphy & Associates, Inc. is a Mississippi corporation with its principal place of business in Jackson, Mississippi. Murphy was the Plaintiff below and is the Appellant here. Murphy's principal and chief executive officer is James L. Murphy, president. Murphy was a consulting and marketing firm, primarily representing a range of different types of contractors in securing and maintaining industrial contracts.
There are three Defendant-Appellees. These are Connie LeBleu, a resident of Natchitoches, Louisiana, who has been sued individually. Two other corporate Defendants are Coatings Manufacturers, Inc., a Louisiana corporation based in Natchitoches, Louisiana, and Coatings of Mississippi, Inc., a Mississippi corporation based in Jackson. The original corporate name of Coatings of Mississippi, Inc. was "Delta-CMI, Inc." LeBleu is a dominant actor within the two corporations, both of which are in the painting business.
Another player is Delta Painters, Inc., an industrial painting concern based in Hattiesburg, Mississippi. John R. Jeter is the president and chief executive officer of Delta. Delta and Jeter are not formal parties to this action.
At some time in 1979 Delta Painters decided to seek the painting and maintenance contract at the Grand Gulf Nuclear Station in Claiborne County, Mississippi. Grand Gulf was owned by Middle South Energy. Mississippi Power & Light Company (MP&L) was agent for Middle South handling the Grand Gulf contract. Murphy has previously worked for MP&L. Delta engaged Murphy's services to assist Delta in securing the contract.
Murphy's fee agreement with Delta was contingent upon Delta's obtaining the contract. If Delta proved the successful bidder, Murphy would receive a flat fee of $500.00 a week or $2,000.00 per month for the duration of the contract, beginning at the time when the painting work built up to the point where Delta had twenty workers on the job. Middle South and MP&L were offering the contract on a cost plus basis, and Delta's arrangement with Murphy, assuming Delta got the contract, was to pay Murphy as MP&L paid Delta.
Under its agreement with Delta, Murphy was required that to represent Delta in obtaining the contract and thereafter continue as Delta's representative in maintaining the contract. This was of some consequence because the contract had a sixty day termination clause and numerous other painting contractors were attempting to edge Delta out and obtain the work for themselves.
In early 1981 MP&L notified Delta of its tentative selection as the painting contractor. Shortly thereafter, Delta began experiencing financial problems. Enter CMI and Connie LeBleu. On June 27, 1981, LeBleu and Jeter first met regarding Delta's financial problems and the Grand Gulf painting contract. By July 6 formal award of the contract to Delta Painters was in considerable jeopardy because of Delta's financial problems. This led to the formation of a joint venture between Delta Painters, Inc. and Coatings Manufacturers, Inc. which was evidenced by a written agreement dated July 13, 1981. The agreement recites that the two corporations wished to pool their resources "to contract for certain industrial type coatings contracts and to share the revenues and expenses thereof," although insofar as the record reflects, the joint venture was never interested in any contract other than Grand Gulf. Under the agreement Delta was to have production responsibilities associated with joint venture's jobs, while CMI was to have administrative responsibilities including receipt and disbursement of funds.
After the formation of the joint venture, but prior to the execution of the contract with MP&L, Murphy per James L. Murphy and Delta Painters per John R. Jeter, agreed that Murphy's fee arrangement would remain the same, with the joint venture assuming Delta's obligations. It is not clear whether Connie LeBleu or CMI knew of or agreed to this arrangement. Murphy and Jeter both insisted that they discussed the matter with her, informed her of the agreement, and that she agreed to it. LeBleu denied any such knowledge or agreement.
In any event, on July 31, 1981, the joint venture, as contractor, formally executed the Grand Gulf painting contract with Middle South Energy. Work began on September 17, 1981. By the end of March, 1982, the painting job had built up to twenty workers.
On March 30, 1982, Murphy received its first check from the joint venture in payment of his consultant's fee. The amount of the check was $250.00. Over the next twenty-one months, ending January 4, 1984, the joint venture paid Murphy approximately $34,450.00. All checks were issued by CMI per the joint venture agreement. The checks were signed
ultimately by Connie LeBleu, Michael LeBleu, Joe LeBleu, William M. Black, Jerry Beal and other CMI officials.
In April of 1982, Murphy approached CMI, and specifically Connie LeBleu, and proposed a written consulting contract. This action appears to have been prompted by a federal indictment returned against John Jeter, Delta Painters' principal, on charges of receiving stolen goods. This caused Murphy to become nervous about his fee arrangement with the joint venture. Murphy was aware that Delta had been on shaky financial ground. He was further aware that his checks were coming from CMI's office in Nachitoches, Louisiana. Murphy feared that Delta and Jeter would drop out of the picture, leaving him dependent upon CMI and LeBleu.
On April 14, 1982, Jim Murphy & Associates, Inc., as consultant, and Connie LeBleu, individually, and her corporations, as contractors entered into a formal written Consultant Agreement. The Agreement recited, inter alia, that Murphy "has performed services for contractor" and that Murphy "intends to perform further services." The agreement further recited the joint venture agreement between CMI and Delta Painters and then embraced the joint venture's contract with Middle South Energy, Inc. dated July 31, 1981, for the performance of certain painting work at the Grand Gulf Nuclear Station "which contract was procured through the expertise and services of consultant [Murphy]." Looking to the future, the contract recited that CMI and LeBleu desired the benefit of Murphy's "further services and advice throughout the tenure of" the Grand Gulf Nuclear painting contract.
As considerations, the contract provided that LeBleu and her corporations would pay Murphy $1,000.00 upon the execution of the contract, $1,000.00 on May 15, 1982, and $2,000.00 per month beginning June 15, 1982, and $2,000.00 on the 15th day of each month thereafter so long as CMI or LeBleu and any related corporation or concern "is performing a painting or coating contract . . . at the Grand Gulf Nuclear Station."
Prior to execution of the Consultant Agreement, the joint venture per CMI had paid to Murphy the sum of $1,000.00 on four separate checks of $250.00 each, the first dated March 30, 1982, the second dated April 7, 1982, and the other two dated April 13, 1982. For the period July 1982 through December 1983 - some 18 months - CMI's average monthly receipts from Middle South/MP&L by virtue of the Grand Gulf painting contract were $197,620.75. As of September 1984, and the time of trial, CMI was still the holder of and carrying on work under the painting and coatings maintenance contract at Grand Gulf.
For the period March 30, 1982, through February 25, 1983, the joint venture paid Murphy at the rate of $250.00 per week.
In January of 1983 - some 18 months following the joint venture's original execution of the Grand Gulf painting contract, and some nine months after the Murphy-CMI Consultant Agreement - CMI bought out Delta Painters' interest, dissolved the joint venture, and took over the Grand Gulf painting contract in its entirety. A formal dissolution agreement was executed January 26, 1983, wherein Middle South Energy accepted CMI as the sole painting contractor thereafter. CMI expressly assumed all of Delta Painters' obligations to Middle South and MP&L. The dissolution agreement is silent with respect to Murphy.
Thereafter, the painting contract on the Grand Gulf project continued with CMI as the sole contractor. Between March 4, 1983, and November 10, 1983, CMI paid Murphy at the rate of $500.00 per week. This was approximately the $2,000.00 per month consultant fee called for by ...