Julius Levy Sons Co. v. Orlansky

• Decision Date: 24 April 1916
• Docket Number: 17883
• Citation: 111 Miss. 331,71 So. 571
• Court: Mississippi Supreme Court
• Parties: JULIUS LEVY SONS CO. v. ORLANSKY

71 So. 571

111 Miss. 331

JULIUS LEVY SONS CO. v. ORLANSKY

No. 17883

Supreme Court of Mississippi

April 24, 1916

APPEAL from the circuit court of Sunflower county, HON. F. E EVERETT, Judge.

Suit by the Julius Levy Sons Company against H. Orlansky. From a judgment overruling a demurrer to defendants plea, plaintiff appeals.

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

Judgment affirmed.

S. F Davis, for appellant.

Herring & Wiley and James L. Williams, for appellee.

OPINION

HOLDEN, J.

This is an appeal from the circuit court of Sunflower county in which the appellant, Levy Sons Company, sued H. Orlansky, the appellee, and from a judgment overruling a demurrer to the defendant's pleas, Levy Sons Company appeal to this court.

Appellant, Julius Levy Sons Company, wholesale merchants of Memphis, sold a bill of goods to B. Bindusky, a retail merchant at Drew, for which, it is alleged, the appellee, H. Orlansky, guaranteed the payment in writing. Bindusky failed to pay for the goods, and suit was entered by Levy Sons Company against H. Orlansky, appellee, to recover the amount under the written guaranty executed and delivered to appellant. Here is a copy of the guaranty:

"Memphis, Tenn., Aug. 26, 1910.

"I hereby agree to be responsible for a certain account to be made by Mr. B. Bindusky of Drew, Miss., to the amount of two hundred and fifty ($ 250.00) dollars, more or less, with Julius Levy Sons Co., of Memphis, Tenn., and this guarantee to hold good until revoked by me in writing.

H. ORLANSKY."

The defendant in the court below demurred to the plaintiff's declaration, which demurrer was by the court overruled, and the defendant, without objection by appellant, was granted leave by the court to plead further, and did subsequently file four separate pleas to the declaration, numbered 1, 2, 3, and 4, whereupon, several days after the order was granted, the appellant moved to strike the pleas, because the defendant had failed to make and file an affidavit setting out his defense in the manner prescribed by section 755, Code of 1906. This motion was overruled by the court, and thereupon the appellant demurred to all of said pleas, 1, 2, 3, and 4, and the court sustained the demurrer to pleas 3 and 4, and overruled the demurrer as to pleas 1 and 2, and the plaintiff declining to plead further, the court entered a final judgment for the defendant, and the plaintiff prosecutes this appeal.

We here set out appellee's special plea No. 2:

"Comes the defendant, by his attorneys, and for further plea in this behalf, says that the plaintiffs ought not to have or maintain their aforesaid action against him, because he says that on the 2d day of January, 1911, at a time when the said B. Bindusky did not owe plaintiffs anything on account by reason of the alleged guaranty sued on in this case, the said plaintiffs expressly agreed with the said defendant that they would cancel the said guaranty, and released the defendant from all further liability thereunder; and that, by reason thereof, the defendant was released...