Citizens' Lumber Co. v. Netterville

• Decision Date: 22 December 1924
• Docket Number: 24264
• Citation: 137 Miss. 310,102 So. 178
• Parties: CITIZENS' LUMBER CO. et al. v. NETTERVILLE et al. [*]
• Court: Mississippi Supreme Court

102 So. 178

137 Miss. 310

CITIZENS' LUMBER CO. et al. v. NETTERVILLE et al. ^[*]

No. 24264

Supreme Court of Mississippi

December 22, 1924

Division B

APPEAL from chancery court of Pike county. HON. R. W. CUTRER Chancellor.

Judgment reversed.

W. B Mixon, for appellants.

The Citizens' Lumber Company and Sandifer, appellants, contend that under the facts of this case, and the law, the court should have decreed that the amount of the indebtedness for material owing to the Lumber Company should first have been deducted from the amount paid into court, because the credit having been extended to Sandifer for this amount of the material and Sandifer having assumed to pay the Lumber Company, then he was entitled to have the contract price of three thousand dollars diminished by the amount of this indebtedness. The test is whether under the facts in this case Sandifer would be liable in a suit by the Citizens' Lumber Company against him for the material bill. Holmes v. Shands & Johnson, 27 Miss. 40. If Sandifer, the owner, was primarily liable to the Lumber Company, then it was not obligatory on the Lumber Company to give notice to Sandifer. 27 Cyc. 113; Brace Mill Co. v. Burbank, 1917-E Ann. Cas. 356; Lake v. Brannin et al., 90 Miss. 737. Sandifer would be estopped to deny liability to the Lumber Company. Delta Lumber Company v. Wall, 80 So. 782; Sec. 2434, Hemingway's Code (Suppl. 1921).

The decree is glaringly erroneous when considered in the light of the holding of this court on suggestion of error in the case of Enochs Lumber Co. v. Garber et al., 116 Miss. 229; Herrin v. Warren & Moberly, 61 Miss. 509; Spengler v. Lumber Company, 94 Miss. 780. It is the contention of appellant that according to the contract and specifications, appellee cannot be heard to make this claim, because if any extra work was done, it was not done according to his contract, and in accordance with the specifications, which were a part of his contract. Court held in the case of Wood v. Morath, 90 So. 714, that "the terms of a plain and unambiguous contract cannot be varied by evidence of the acts of the parties thereto, indicating a construction thereof by them at variance with its terms." Garson Bros. v. Wilson, 93 So. 783.

It is our contention that the appellee, even if the extra brick work was done, by his failure to have the amount of the cost estimated by the architect, and indorsed on the contract, has forfeited his right to claim any compensation therefor, because such acts on his part in making such change, or incurring such additional expense, are at variance with the plain and unambiguous provisions of this contract.

E. G. Williams, for appellees.

The appellants contend that under the facts of this case, that the court should have decreed that the amount of the indebtedness for material owing to the Citizens' Lumber Company should first have been paid or deducted from the amount paid into court. This is an erroneous idea of the appellants, the Citizens' Lumber Company, as the Citizens' Lumber Company failed to give the appellant, Sandifer, notice, and the notice should be given to the owner of the property. 34 Cent. Dig. title "Mechanics Liens," sec. 163; Hall v. Erkfitz, 84 N.W. 310; Ricards v. O'Brien, 53 N.E. 858.

It is not shown by the record in this case that Mr. M. E. Sandifer, one of the appellants, had ever in any way contracted with the Citizens' Lumber Company to pay the lumber company for any materials furnished by the lumber company to Netterville, the contractor. Lake v. Brannin, 90 Miss. 737.

"When a written notice of a claim to a fund by laborers has been served subsequent to a writ of garnishment, the garnishment being first in time, is first in right . . ." Merrin v. Mobley, 61 Miss. 509. Sec. 3074, Code of 1906, was strictly followed by the laborers as will be noted by reference to the exhibits to the appellant's "Bill of Interpleader."

An agreement by the owner of a building to become liable as surety for material furnished his contractor is within the statute of frauds. Vicksburg Mfg. & Supply Co. v. Jaffray Const. Co. et al., 94 Miss. 282.

We take it that the true rule is "where a contract is ambiguous, the practical construction placed thereon by the parties thereto as evidenced by their acts thereunder may be looked to in order to ascertain its meaning," and in this matter the contract allowed the contractor to do "extra work" in order to make the dwelling come up to plans and specifications, and the "extra work" was done by the contractor, Netterville, with the consent of the owner, and he is now estopped to deny this, as he acquiesced, for the reason neither the owner nor his architect made any complaint to the contractor. If the owner knew that the contractor was doing the "extra work" and did not stop him, is he not now bound for same?

Argued orally by W. B. Mixon, for appellant.

OPINION

COOK, J.

On April 11, 1923, the appellant M. E. Sandifer entered into a written contract with the appellee A. R. Netterville for the construction of a dwelling house on a lot described in the contract. By the terms of this contract the contractor agreed to furnish all the material and labor necessary for the completion of the building at and for the sum of three thousand dollars. The contractor applied to the appellant Citizens' Lumber Company to purchase lumber for the construction of this dwelling, and thereupon the lumber company notified the owner, Sandifer, that he would be charged with all material furnished, and that bills therefor would be mailed to him every two weeks, and a discount of two per cent, would be given for prompt payment. The contractor employed a number of workmen, and purchased brick and material from other parties on his own credit, and proceeded with the construction of the building. On the certificate of the architect as to the amount of work done the owner made certain payments on the contract price, and also paid direct to the Citizens' Lumber Company for material furnished the sum of seven hundred and fifty-five dollars and eighty-eight cents. On July 16, 1923, several parties gave the owner notice in writing that they held certain claims for labor performed on said building, and on July 17, 1923, G. W. Netterville notified the owner in writing of his claim for material furnished the contractor.

At the time these notices were given there was a balance of nine hundred and forty-one dollars and twenty-six cents due on the original contract for the building, and after receipt of the notices the owner filed a bill of interpleader in the chancery court of Pike county, paying into court the amount due under the contract, making all parties holding claims including the Citizens' Lumber Company and one H. M. Herrington, who had not filed written notices of their claims, parties thereto, and praying that these claimants be required to propound their claims, and that the court adjudicate all matters in relation to said contract. Thereafter all the parties propounded their claims, and the contractor filed a petition in said cause, demanding of the appellant Sandifer the additional sum of six hundred ten dollars and sixty cents for extras, which he claimed were not covered by the contract, and which he had furnished.

At the final hearing proof was taken on all the claims and issues and the court granted a decree awarding the contractor one hundred ninety-two dollars and forty cents for extra work done and not provided for in...