Lucas E. Moore Stave Co. v. Wells

• Decision Date: 08 July 1916
• Docket Number: 18213
• Citation: 111 Miss. 796,72 So. 228
• Court: Mississippi Supreme Court
• Parties: LUCAS E. MOORE STAVE CO. v. WELLS

72 So. 228

111 Miss. 796

LUCAS E. MOORE STAVE CO. v. WELLS

No. 18213

Supreme Court of Mississippi

July 8, 1916

APPEAL from the circuit court of Montgomery county, HON. J. A. TEAT Judge.

Suit by S. P. Wells against the Lucas E. Moore Stave Company. From a judgment for plaintiff, defendant appeals.

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

Reversed and remanded.

McClean & Rowe, for appellant.

Leftwich & Tubb, Hill & Witty, and W. F. Thompson, for appellee.

OPINION

COOK, P. J.

This is a suit instituted by S. P. Wells, appellee, against the Lucas E. Moore Stave Company, appellant, for the alleged publication of an alleged libelous letter. The second count of the declaration charges that one of the employees of the defendant stave company uttered slanderous statements which gravely reflected upon the honesty of the plaintiff. There was another count in the declaration which was excluded from the jury's consideration by the instructions of the trial court.

In reference to the second count, we merely desire to say that the statement attributed to Mr. Lantrip was purely voluntary had nothing to do with his employment, and whether it was false and slanderous did not concern appellant. In other words, the alleged agent was not about the master's business when he uttered the words imputed to him.

The record discloses that plaintiff had a contract with defendant whereby he undertook to manufacture and sell to defendant staves, and whereby defendant contracted to pay plaintiff certain prices for the staves when delivered, and, in the meantime, to enable plaintiff to carry out his contract defendant agreed to, and did, make advance payments when the staves were yarded. This contract was in process of performance and had been performed in part by both parties--a part of the staves had been delivered and the advancements had been made by defendant--when defendant, on July 21st, received the following letter from one H. Ingram, a "general merchant and cotton buyer," doing business at Kilmichael, viz.:

"Inclosed please find claims to the amount of one hundred and fifty-nine dollars and six cents, O. K. by Mr. Wells. It seems that Mr. Wells would not pay these parties for their hauling, so they was needing their money to buy something to eat. I let them have something to eat. They was here Sat., and Mr. Wells still refused to pay them, so they wanted to attach the staves here on the ground. Thinking you would pay them, I talked them out of the notion of attaching the staves, until I could hear from you. So they turned their claims over to me, as per itemized statement by them and your Mr. Wells. If you desire to pay this claim and want to pay it through me and have any doubt about the parties getting their money, will have the Bank of Kilmichael make you a bond for this amount and fix it any way you desire. Hoping you will appreciate my position in the matter and understand what I did was to prevent them from attaching staves, until I could hear from you. Would thank you to let me hear from you at once."

To this letter the manager of the defendant corporation made this reply, viz.:

"Columbus Miss., 7/22/13. Mr. Henry Ingram, Kilmichael, Mississippi--Dear Sir: We have your favor of the 21st inst, inclosing statement of the amounts S. P. Wells is due various parties in your section for hauling staves. We cannot decide on the moment what is the best thing for us to do in this matter until we find out the total indebtedness now outstanding against the stock.

"We are in receipt of another letter from a party who has a claim of thirty-five dollars against these staves and we have no idea how many others who have similar claims.

"In commencing to do business with Mr. Wells we made a contract with him whereby we were to advance a stipulated amount per M pieces as the staves were made and yarded and further advance for dressing and hauling to the railroad. We have accepted his statements as to amounts of stock actually made and yarded and we find that after the business is practically wound up that we have advanced on a great many more staves than he actually had as is evidenced by bills of sales that we now hold covering the stock made.

"At the present time Mr. Wells' debit balance stands on our books as one thousand and fifty-three dollars. This, of course, includes an old amount made while working the Oliver timber last year and year before last amounting to about six hundred and eighty dollars. We wrote him a few days ago to get all the dressed staves that he had hauled to the railroad so that we could count them up and see where we stand, but so far we have been unable to get any satisfaction from him at all, as he does not write giving us any information whatever as regards the progress being made getting the staves to the railroad ready to ship.

"We do not feel justified under the circumstances of making any further advances or payments against his stock, until we know definitely what he has. If you will kindly find out and let us know whether or not all the dressed staves have been hauled to the railroad and are now ready to be counted and loaded we will go down and check the staves up and if we find that it is to our interest to...