B. C. George & Co. v. Woodruff Furniture Hardware Co

• Decision Date: 23 March 1931
• Docket Number: 29290
• Citation: 133 So. 134,160 Miss. 13
• Parties: B. C. GEORGE & CO. v. WOODRUFF FURNITURE HARDWARE CO
• Court: Mississippi Supreme Court

133 So. 134

160 Miss. 13

B. C. GEORGE & CO. v. WOODRUFF FURNITURE HARDWARE CO

No. 29290

Supreme Court of Mississippi

March 23, 1931

Division B

PRINCIPAL AND AGENT. Authority of alleged agent to purchase goods on credit for principal, when disputed, becomes question for jury; authority of agent to purchase goods on credit of principal held question for jury under evidence.

Where there is a dispute as to the authority of an alleged agent of a person to purchase goods on the credit of his principal the question of authority must be submitted to a jury for determination. The facts in this case have been examined, and it is held that the granting of the peremptory instruction was error.

HON. C P. LONG, Judge.

APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.

Suit by the Woodruff Furniture Hardware Company against B. C. George & Co., a partnership, composed of B. C. George and another. From the judgment rendered, defendant appeals. Reversed, and cause remanded for a new trial.

Reversed and remanded.

W. C. Sweat, of Corinth, for appellant.

In determining whether a verdict should have been directed by a trial court in any given case, every material fact which the evidence tends to show in favor of the party against whom such a verdict is asked should be taken as established.

St. Louis & San Francisco Ry. Co. v. Nixon & Phillips, 114 Miss. 677, 105 So. 470; Ross v. Fair, 145 Miss. 18, 110 So. 841; Shade v. Diamond L. Service Station, 148 Miss. 157, 114 So. 260; National Union Fire Ins. Co. v. Provine, 148 Miss. 659, 114 So. 730.

Where a peremptory instruction is granted against a plaintiff, the plaintiff's testimony must be given full weight with reference to the facts and circumstances, and the reasonable inference to be drawn therefrom.

Wise v. Peugh, 140 Miss. 479, 106 So. 81; Dean v. Brannon, 139 Miss. 312, 104 So. 173; Reed Bros. v. Bluff City Motor Co., 139 Miss. 441, 104 So. 161; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154.

R. E. Spivey, Jr., of Canton, for appellee.

If any material facts are undisputed the parties are entitled to have the court so instruct the jury.

Smith v. Gulf M. & N. R. Co., 129 So. 599; Columbus & G. Ry. Co. v. Cobbs, 126 So. 402.

Court may give peremptory instruction, or direct verdict, where contrary verdict could not reasonably have been allowed to stand.

Clark v. Moyse & Bro., 48 So. 721.

Where there was no conflict in the material evidence in the case, the question was one for the court, and not for the jury. The court should direct a verdict one way or the other.

Board of Mississippi Levee Com'rs. v. Montgomery et al., 110 So. 845; Carrere v. Johnson, 115 So. 196.

The testimony for the plaintiff, being uncontested, must be taken as true.

Great Southern Life Ins. Co. v. Campbell, 114 So. 262; Mobile & O. R. Co. v. Clay, 125 So. 819.

OPINION

Ethridge, P. J.

The Woodruff Hardware & Furniture Company was plaintiff in the court below and brought suit against B. C. George & Company, a partnership composed of B. C. George and C. W. George, and alleged that on the first day of April, 1929, the said B. C. George & Company was indebted to the said Woodruff Hardware & Furniture Company, Inc., in the sum of eight hundred fifty-two dollars and sixty-one cents, for goods, wares, and merchandise before that time sold and delivered to the said B. C. George & Company by the plaintiff at the special instance and request of the said B. C. George & Company, an itemized account of which was filed with the declaration. It was further alleged that all of the goods, wares, and merchandise were to be paid for on the first day of the month immediately following the month during which same were purchased by and delivered to the said B. C. George & Company, and to so pay, the said B. C. George & Company, at such time, agreed and promised; and that no payment had been made on the account, and that same was past due and unpaid and owing the said Woodruff Hardware & Furniture Company by the defendant. The account attached was sworn to by the president of the hardware company. Many items of the account were shown to have been purchased on order of or purchased by W. S. King.

The defendant pleaded that it did not owe the amount exhibited against it, nor any item thereof; that the account showed on its face that the items were purchased by W. S. King, and that W. S. King had no authority from the defendant to purchase the said items from the plaintiff or from any other person, and charged to the account of the defendant; that King had no authority from the defendant, either express or implied, to purchase either of the said items, and that no other person had authority from this defendant, either express or implied, to purchase the said items, or any part thereof, or either item thereof, for the account of this defendant, and that this defendant is in no way or manner obligated to pay the said account, or any part thereof, nor is it indebted to the plaintiff in the sum sued on in this cause, or any other sum. This plea was duly sworn to by C. W. George, a member of the partnership, who stated on oath that he is familiar with the facts and authorized to make the oath, and the matters and things set forth in the foregoing plea are true and correct, as therein stated.

For replication to this plea the plaintiff says that B. C. George & Company, does owe the amount exhibited against it by the plaintiff in said cause, and each item thereof; that the items purchased by W. S. King were purchased under the authority and direction of B. C. George & Company, and that said W. S. King had the authority to purchase all of said items for B. C. George & Company, and to charge same to the account of B. C. George & Company; that Woodruff Hardware & Furniture Company was authorized by B. C. George & Company, or its duly authorized agent, to sell and deliver said items to W. S. King for B. C. George & Company, and to charge same to the account of B. C. George & Company; that all of the said items were used in the business of B. C. George & Company, and that the defendant B. C. George & Company is obliged to pay the said account, and is indebted to plaintiff in the sum sued on, and of this it puts itself upon the country.

On trial it was stated: "It is agreed in this case that all of the items contained in the account sued on were sold and delivered by the plaintiff, and that the question of the correctness of each item and the price thereof is not questioned. It is further agreed that four hundred eighty-two dollars and forty-nine cents of the account sued on went into the company contract and that the defendants are liable for that amount, and that a judgment should be entered against them for that in any event. As to the other items sued on the only question involved is whether or not the parties purchasing the same were liable for it or whether they were properly and correctly bought and obtained on the credit of the defendants, and whether or not the defendants are liable for it."

The plaintiff introduced as a witness R. C. Wilson, connected with the J. W. Rogers Lumber Company, who testified that he became acquainted with B. C. George of the firm of B. C George & Company, in November, 1928, when they began the construction of the road from Canton to Jackson and were purchasing material from the Rogers Lumber Company for use in said road, and that Mr. George came to the lumber company for the purpose of purchasing material from the said lumber company; that he was accompanied by Mr. King, and that Mr. George represented Mr. King as his agent, or foreman on that job; that Mr. B. C. George asked the witness to take Mr. King to other places and introduce Mr. King as the agent and representative of the B. C. George & Company for the purpose of purchasing equipment for B. C. George & Company; that B. C. George asked him to carry King up town and introduce him to a hardware company and an oil company, and tell them to let Mr. King have what he wanted; that they referred to some equipment for a camp, and that he carried Mr. King to Mr. Woodruff's store, Woodruff...