Hicks v. Greenville Lumber Co., Inc.
Decision Date | 13 August 1980 |
Docket Number | No. 52078,52078 |
Citation | 387 So.2d 94 |
Parties | John D. HICKS, Jr., and Dixie W. Hicks v. GREENVILLE LUMBER COMPANY, INC. |
Court | Mississippi Supreme Court |
Robertshaw & Merideth, Douglas J. Smith, Jr., Greenville, for appellants.
Felts, Russell, Adams & Lueckenbach, Nathan P. Adams, Jr., Greenville, for appellee.
Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
Appellants, John D. Hicks, Jr., and his wife, Dixie W. Hicks, appeal from a judgment of the circuit court of Washington County, sustaining a general demurrer to their four-count declaration for damages against the Greenville Lumber Company, Inc.
Appellants sought damages of $92,284.39 from the appellee for negligence in the construction of their home, breach of an express one-year warranty covering any defects in construction, breach of implied warranties of suitability and fitness, strict liability in tort, and the false filing of a materialman's lien against their property. The house, the subject matter of this suit, was constructed by appellee and sold by it to Sharron Anne Shepherd, the title being transferred by general warranty deed dated October 20, 1975. The Hicks subsequently purchased this house from Mrs. Shepherd, who conveyed title to the Hicks by general warranty deed dated June 8, 1976. Appellee acted as broker in this transaction.
Appellants' only assignment of error is that the trial court erred in sustaining a demurrer to all counts of their first amended declaration. Negotiations for the purchase of this house were carried on in May and June of 1976 between the Hicks and a representative of Greenville Lumber Company.
Among other things, appellants charged in their declaration:
In Count IV, Plaintiffs charged:
"That Defendant falsely and knowingly filed a notice of Materialman's lien against Plaintiffs' property in violation of Mississippi Code of 1972, Section 85-7-201, and are thereby liable to Plaintiffs for damages in the amount of $2,284.39."
The trial court was correct in sustaining a demurrer to Counts I, II, and III of the Amended Declaration, but was in error in sustaining a demurrer to Count IV.
The allegation about the residence being still covered by an express one-year warranty of appellee apparently was an oral representation by appellee's agent, because no copy of the sales contract or any writing of any kind was attached to the declaration.
Since there were no allegations in the declaration charging fraud or mutual mistake, our ruling in Mississippi State Highway Commission v. Cohn, 217 So.2d 528 (Miss.1969), applies. In Cohn, we said:
See also, 77 C.J.S. Sales § 312 (1952), pp. 1148-49.
The trial court was correct in sustaining a demurrer to Count I of the declaration.
In Count II, the plaintiffs charged:
"That Defendant, in failing to properly manufacture and construct said residence, breached both expressed and implied warranties to (Plaintiffs), resulting in damages to Plaintiffs as herein above described."
In the concurring opinion in Oliver v. City Builders, Inc., 303 So.2d 466 (Miss.1974), a majority of this Court joining therein, it was said:
Following up on the Oliver ruling, we said, in Brown v. Elton Chalk, Inc., 358 So.2d 721 (Miss.1978):
The trial court was correct in sustaining a demurrer to Counts II and III of the declaration.
Appellee contends that the trial court was correct in sustaining a demurrer to Count IV of the declaration because Count IV "shows on its face that the action for recovery is filed more than one year from the filing of any such alleged false notice and is, therefore, barred by the statute of limitations in this cause, same being Section 85-7-201 of Mississippi Code of 1972, Annotated."
MCA section 85-7-201 (1972), which has been brought forward unchanged in each successive code since 1930, provides:
"Any person who shall falsely and knowingly file the notice mentioned in section 85-7-197 without just cause shall forfeit to every party injured thereby the full amount for which such claim was filed, to be recovered in an action by any party so injured at any time within one year from such filing; . . ."
MCA section 85-7-197 (1972), also brought forward unchanged since 1930, provides in part:
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...cannot be sustained if any count is sufficient." Boler v. Mosby, 352 So.2d 1320, 1323 (Miss.1977); see also Hicks v. Greenville Lumber Co., Inc., 387 So.2d 94, 97 (Miss.1980). B. Whether Holland's breach of contract claim may survive a demurrer turns on whether, taking as true the facts Hol......
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Keyes v. Guy Bailey Homes, Inc., 54095
...that the plaintiff was the first purchaser. Id. at 722. The most recent Mississippi case concerning this issue is Hicks v. Greenville Lumber Co., Inc., 387 So.2d 94 (Miss.1980). Once again, relying solely on Mississippi precedent, the Court ruled that a second or remote purchaser could not ......
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Manderson v. Ceco Corp., EC83-133-NB-D.
...became law in 1928, the statutory provisions have never been interpreted by the Mississippi Supreme Court. Cf. Hicks v. Greenville Lumber Co., 387 So.2d 94, 96-97 (Miss.1980) (discussion of statute of limitations contained in statute). This being a case of first impression, a Federal court ......
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Parker v. Thornton, 07-CA-59587
...there is an implied warranty that the home was built in a workmanlike manner and it is suitable for habitation. Hicks v. Greenville Lumber Co., Inc., 387 So.2d 94, 96 (Miss.1980), quoting Brown v. Elton Chalk, Inc., 358 So.2d 721, 722 (Miss.1978); Compare, Keyes v. Guy Bailey Homes, Inc., 4......