Gambrell v. Southern Moline Plow Co.

• Decision Date: 17 February 1913
• Docket Number: 15,812
• Citation: 103 Miss. 824,60 So. 1012
• Court: Mississippi Supreme Court
• Parties: J. D. GAMBRELL v. SOUTHERN MOLINE PLOW COMPANY

60 So. 1012

103 Miss. 824

J. D. GAMBRELL v. SOUTHERN MOLINE PLOW COMPANY

No. 15,812

Supreme Court of Mississippi

February 17, 1913

APPEAL from the Circuit Court of Smith county, HON. R. C. RUSSELL Special Judge.

Suit by Southern Moline Plow Company against J. D. Gambrell. From a judgment for plaintiff, defendant appeals.

Appellee was plaintiff in the court below, and appellant was defendant. This action was begun by the appellee against appellant for certain merchandise sold and delivered to defendant, who had taken bankruptcy after the purchase of the merchandise, and who had been discharged before the institution of this suit. The plaintiff claimed that there was an agreement between its attorneys and the attorneys for defendant that defendant should keep the goods and pay for them, and the claim proved in the bankrupt court should be reduced by the value of these goods. The defendant denied that he had authorized his attorney to make any such agreement, and that he had never ratified it, and that if such agreement was made it was made without his authority and was therefore not binding upon him. Under this state of facts, the trial court gave a peremptory instruction to find for plaintiff, and defendant appeals.

Reversed and remanded.

Wills &amp Guthrie, attorneys for appellant.

Defendant's demurrer should have been sustained because the demurrer sets out that the declaration failed to show the above allegations in that the demurrer points out that the declaration did not sufficiently set up the promise, and because the declaration failed to set out the exact words of the defendant in the new promise alleged to have been made. The rule of law is that in pleading a new promise that the precise time of the new promise should be pleaded, and the words of the new promise should be pleaded in haec verbis, or in substance. 2 Remington on Bankruptcy, sec. 2728; Thornton v. Nichols &amp Lemon, 11 A. B. R. (Ga.) 304.

The declaration in this case does not pretend to set out the language of the new promise, nor the substance of the agreement made by the attorneys for the parties litigant, and does not show that the attorneys for the defendant had any special authority to make such a compromise whereby an attempt to bind the defendant was made.

In 28 Miss. 702, David La Tourlette v. Price, the court said "There can be no doubt but that there is at least as great strictness required, in order to create a...