Delta Lumber Co. v. Wall

• Decision Date: 03 March 1919
• Docket Number: 20570
• Citation: 119 Miss. 350,80 So. 782
• Court: Mississippi Supreme Court
• Parties: DELTA LUMBER COMPANY v. WALL ET UX

80 So. 782

119 Miss. 350

DELTA LUMBER COMPANY v. WALL ET UX

No. 20570

Supreme Court of Mississippi

March 3, 1919

Division B

1 FRAUDS. Statute of. Agreement within the statute of fraud.

Where a lumber company had originally contracted with a contractor to furnish material for building a house, but afterwards this contract was abrogated and a new verbal contract made between the lumber company and the owner of the house, by which he was to pay for the material as the work progressed, such last contract was not an agreement to pay the debt of another and unenforceable under the statute of frauds, because not in writing.

2 SAME.

Such a contract was an original contract between the materialman and the owner and it was not necessary for it to be in writing in order to impress the building into which material went, with a materialman's lien.

3. CONTRACTS. Evidence. Accounts.

The way in which the account was carried on the books of the materialman was not the material thing that determined whether or not there was a contract between the materialman and the owner---at most it was only a circumstance to be considered along with the other evidence.

4. FRAUDS. Statute of. Agreement.

Where an owner for whom a contractor was building a house agreed to make payments directly to the materialman for materials going into the house, such agreement was not within the statute of frauds, as an agreement to pay the debt of another, but amounted to a promise by the owner to pay his own debt to a creditor of the contractor.

5. FRAUDS. Statute of. Estoppel to attack validity of contract.

Where because of the failure of the owner to carry out his verbal agreement with the materialman to pay for the material used in the construction of the owner's house as the work progressed, the materialman failed to perfect his lien upon the house; in such case, the owner is estopped from asserting the invalidity of his verbal agreement under the statute of frauds.

6. MECHANICS' LIEN. Jury question.

Under the facts in this case, as set out in its opinion, the court held that the question as to whether or not defendant agreed to pay the materialman direct, was for the jury.

7. MECHANICS' LIEN. Necessity for notice. Contract with owner. Where the owner for whom a house is being built makes an original contract with the materialman for material, no notice in writing is required by the statute to be given the owner in order to establish a materialman's lien.

HON. H. H. ELMORE, Judge.

APPEAL from the circuit court of LeFlore county, HON. H. H. ELMORE, Judge.

Petition by the Delta Lumber Company against J. N. Wall and wife for a mechanic's lien upon a house erected on land belonging to the wife, but for no lien on the land. From a judgment for defendants, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and cause remanded.

J. B. Harris and Alfred Stoner, for appellant.

Whittington & Osborne, for appellees.

OPINION

ETHRIDGE, J.

The Delta Lumber Company filed a petition for a mechanic's lien upon a house erected for defendants, J. N. Wall and his wife, situated upon certain lands described in the petition, alleging that on the 18th day of December, 1916, petitioner entered into a verbal agreement or contract with defendants to furnish certain materials to be used in the erection of said house. By the terms of the contract said materials were to be furnished when demanded by the said Wall and used to erect said building on a lot of land owned by Mrs. Wall; that petitioner was to receive six hundred and ninety-six dollars and eighty-five cents, one-third to be paid when the material was on the ground, one-third when the house was framed up, and the other when the building was completed; that on the 9th day of March, 1917, petitioner finished furnishing said materials, and during the time between the letting of the original contract and the completion of the building, petitioner, at the special request of defendant Wall, furnished extra material in and about the erection of said building to the amount of two hundred and fifty-six dollars and seventy-seven cents, an itemized account being filed with the petition; that there was due at the time of the filing of the suit, after deducting all just credits and offsets, the sum of four hundred and forty-six dollars and fifty-two cents; that petitioner claims a lien upon said building, but not upon the land. The original petition was amended with reference to the amount of lumber furnished.

The defendants filed an answer, and say that on or about the 1st day of December, 1916, they entered into a contract with Will Lacour to erect said building, furnish all materials of all kinds, and all labor, including plumbing and hardware painting, etc., for the sum of one thousand, four hundred forty dollars, with the understanding that the building was to be completed in a good and workmanlike manner, and delivered to the defendants free from all liens and incumbrances by the first of March, 1917; that the amount was to be paid as the work progressed, with the understanding that no amount was to be paid by the defendants in excess of the estimate of the defendants of the work done and material furnished up to the time of any partial payment. They denied that they agreed with Lacour to furnish extras, and pay extra sums as set forth in the amended petition. They, further answering, say the Lacour never completed the construction of said building, and that the double doors were defective, not properly installed, and that the roof leaks in many places, and that it was not constructed in a good and workmanlike manner. They, further answering, say that Lacour furnished material and did construct said building except as before stated; that as the work progressed they paid Lacour one thousand, five hundred and ninety dollars and forty-three cents, which is in excess of the original contract price, plus the one hundred dollars, and say that Lacour is indebted...