Holden v. Rice Mercantile Co.

• Decision Date: 28 March 1910
• Docket Number: 14046
• Citation: 96 Miss. 425,51 So. 895
• Court: Mississippi Supreme Court
• Parties: HUGH M. HOLDEN ET AL. v. RICE MERCANTILE COMPANY

51 So. 895

96 Miss. 425

HUGH M. HOLDEN ET AL. v. RICE MERCANTILE COMPANY

No. 14046

Supreme Court of Mississippi

March 28, 1910

FROM the circuit court of Amite county, HON MOYSE H. WILKINSON Judge.

Holden and wife, appellants, were plaintiffs in the court below, the mercantile company, appellee, was defendant there. From a judgment in plaintiffs' favor for a sum much smaller than the demand in their declaration they appealed to the supreme court.

The suit was for the recovery of several separate items of indebtedness. The defendant's liability for one of the items, for which they were denied a recovery in the court below, depended upon the authority of a husband to execute a release for his wife, his authority being in dispute. The rulings of the trial court relating to the question are stated in the opinion of the court.

Reversed.

Clem V Ratcliff, for appellants.

This suit was defended on the grounds that the plaintiffs had waived the landlord's claim, or lien by a certain writing mentioned in the testimony of both the plaintiffs and the defendants. It cannot be denied that if the landlord's lien was not, by that instrument, or otherwise, waived, that plaintiffs are entitled to recover the amounts sued for. Was the lien waived? We say not under the proof. The burden to show that it was waived was upon the defendants, since it was plead as a special defense. The proof shows that the landlord, Mrs. Holden, positively did not waive the lien, and did not sign the waiver in evidence at all and did not authorize it at all.

It is not attempted to be shown that the lien was waived in any way, or manner except by the written instrument referred to in the testimony, and the landlord, Mrs. Holden, swears positively that she did not waive it and that she did not sign and execute or authorize the signing and execution of that purported waiver, and that she knew nothing about it whatever.

It was a question for the jury to say whether the landlord did in fact waive her lien, when she positively denies it.

Jackson & Gordon, for appellee.

The instrument signed by H. M. & M. L. Holden is a waiver of their landlord's lien and binds them under the law. Appellants are now estopped from coming into court and setting up a claim against the Rice Mercantile Co. Under the law H. M. Holden is made the statutory agent of his wife and even if she did not sign the instruments, as testified by her, she is held...