Boydstun v. Presley, 42349
| Citation | 141 So.2d 561,244 Miss. 390 |
| Decision Date | 28 May 1962 |
| Docket Number | No. 42349,42349 |
| Parties | R.W. BOYDSTUN, Jr. v. Salathiel PRESLEY. |
| Court | United States State Supreme Court of Mississippi |
Boydstun & Boydstun, Louisville, for appellant.
Charles D. Fair, Louisville, for appellee.
The matter here in controversy involved the sum of $400, plus interest and attorney's fees, and arose in this way: Joe Lyon entered into a contract with Salathiel Presley to build and construct, according to Acme Building Supply Blueprint, Presley was to furnish all materials and deliver the same to the site, and was to make payment for the work in two installments of $500 each as the work progressed, as stipulated, and a final payment of $400, evidenced by a note, due thirty days after completion of the contract. The two installments were paid. But Presley, because of alleged defects in the work, declined to pay the note when it became due. Lyon assigned the past due note to R.W. Boydstun, Jr. for a credit of $350 on his account; and Boydstun instituted suit for collection of the note, interest, and attorney's fees.
The pleadings, as made up, presented an issue as to whether or not the work, as performed by Lyon and his employees, was done in good workmanship style. The plaintiff affirmed that it was, and the defendant charged that it was not.
Salathiel Presley was called as an adverse witness for cross-examination, and he detailed his complaints as follows: There were a number of leaks in the valleys because the roof was improperly laid, and there was no flashing used around the chimney. The hearth was exposed more on one side than on the other. The window jambs were cut too narrow and short. There was a swag in the kitchen floor and a bow in the den floor. Numerous studs were omitted. The plans called for them to be erected on 15-inch centers, but there was no uniformity, and some were ten inches apart while the space between others was twenty-one inches. No ventilators were placed in the foundation. Many of the walls were not straight; and because of this irregularity the bathtub would not fit. About three-fourths of the time smoke would not go up the chimney and the doors had to be opened. He said that he gave no orders about the roof ridge. On his direct examination, Presley was more elaborate in describing the alleged defects. Besides, he denied the claim of Lyon that certain changes were made at his instance.
Corroborating evidence as to the defective and leaky roof was given by James Harrell, who claimed to be an experienced roofer. It was his opinion that it would cost between $400 and $500 to correct such defects. Fred Nabors, who appraised the place, testified that the valleys were faulty and the workmanship defective. He saw the house just after a rain and observed that it was leaking. He also gave corroboration as to the chimney, hearth and window casings. Bernard Whiteside, a neighbor, corroborated Presley's version in practically all particulars, including the failure of the chimney to draw properly.
Joe Lyon testified in detail that he did everything in accordance with the plan except such as Presley, or his father, acting for him, changed; that he left off the flashing around the chimney because Presley told him to do so; that he was in the house during a rain, and there were no leaks at that time; and that the nails in the roof ridge were used because Presley was afraid the shingles would blow off. He admitted that there was a slight defect in the hearth and the chimney, and said that he offered to remedy it if Presley would get some more brick, but that he declined to do so. George Eichelberger, an employee of Lyon, corroborated his employer's version in all particulars.
Thus the factual issue as to defects and good workmanship was in sharp dispute. The court gave a number of instructions, which fairly presented the law on that issue. No complaint whatever was made as to them. The jury found a verdict for the defendant, and a judgment to that effect was promptly entered on the minutes.
The trial was commenced and concluded on July 19, 1961. Upon the return of the verdict, the plaintiff made a motion for a new trial on the ground that the verdict was against the overwhelming weight of the evidence. This motion was overruled.
Thereafter on September 5, 1961, the plaintiff filed a paper styled "MOTION FOR NEW TRIAL ON NEWLY DISCOVERED EVIDENCE AND PROOF OF PERJURY." The alleged perjurers were Fred F. Nabors, Salathiel Presley and James Harrell.
As to Nabors, the motion in fact said that this witness, on cross-examination during the trial, testified that he took approximately 2,700 square feet as the area of the house, and, using a unit value in square feet, he put an estimated value, after correction of the deficiencies and completion, of $12,500, when the...
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...does present the practical problem of how counsel may prepare a motion for a new trial (which ordinarily, as held in Boydstun v. Presley, 244 Miss. 390, 141 So.2d 561 (1962), must be filed before the court term adjourns), or a bill of exceptions, and tender such during the trial which, as i......
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...does present the practical problem of how counsel may prepare a motion for a new trial (which ordinarily, as held in Boydstun v. Presley, 244 Miss. 390, 141 So.2d 561 (1962), must be filed before the court term adjourns), or a bill of exceptions, and tender such during the trial which, as i......