Postal Telegraph & Cable Co. v. Friedhof

• Decision Date: 09 January 1922
• Docket Number: 22237
• Citation: 90 So. 182,127 Miss. 498
• Parties: POSTAL TELEGRAPH & CABLE CO. v. FRIEDHOF
• Court: Mississippi Supreme Court

90 So. 182

127 Miss. 498

POSTAL TELEGRAPH & CABLE CO. v. FRIEDHOF

No. 22237

Supreme Court of Mississippi

January 9, 1922

APPEAL from circuit court of Lauderdale county, HON. J. H. FATHEREE Judge.

Action by Theodore Friedhof, Jr., against the Postal Telegraph & Cable Company. Judgment for plaintiff, and defendant appeals. Reversed, and judgment for defendant.

The appellee, Theodore Friedhof, Jr., recovered a judgment in the circuit court of Lauderdale county against the appellant Postal Telegraph & Cable Company, in the sum of eighty-seven dollars and fifty-five cents, with interest, aggregating ninety-five dollars and forty-two cents for services alleged by the appellee to have been rendered appellant by him in repairing the bicycles of appellant's messenger boys. At the conclusion of the evidence each party moved the court for a directed verdict. The motion of the appellant was overruled, and that of the appellee sustained, and verdict and judgment entered accordingly, from which appellant prosecutes this appeal.

Stating the evidence must strongly for the appellee, this state of facts is shown: Appellant was engaged in the telegraph business with an office at Meridian, of which H. L. Barksdale was the manager. In receiving and transmitting messages through its said office, appellant had employed several messenger boys whose duty it was, on call of its patrons, to take up messages to be transmitted through said office, as well as to deliver messages received through said office. Some of these messenger, boys used bicycles in the performance of their duty, while others did not. Those who used bicycles were in the habit of having them repaired by the appellee, who was engaged in that business. Appellee testified that appellant's manager at its Meridian office, Barksdale, agreed to retain out of the salaries of these messenger boys the amounts necessary to pay their repair bills; that when they had their bicycles repaired his custom was to make out the bill in duplicate, one copy of which he retained, the other the messenger boy took to the manager, Barksdale, and had him O. K. it, which O. K'd bill was then returned to appellee; that he charged all of these accounts to the appellant and H. L. Barksdale, but made no claim that the services were rendered either for Barksdale or the appellant, contending that the appellant was liable because its manager, Barksdale, had agreed to hold out of the salaries of the boys sufficient sum to pay their repair bills, and had failed to do so to the amount for which suit was brought and judgment was recovered. Barksdale's initials were "H. L." As an example of how these bills were O. K.'d, we take the account of Sylvester Davies as follows: "Sylvester Davies--one light--two dollars and fifty cents."

"O K. H. L. B."

The caption of the account (not the O. K.'d bills) as made out and introduced in evidence is in this language "Postal Telegraph Company and H. L. Barksdale, in Account with Theo. Friedhof, Jr."

Appellee testified further that the manager, Barksdale, paid some of these repair bills, but refused to pay those for which this suit was brought. Barksdale testified that the messenger boys furnished their own bicycles; that, as manager of its Meridian office, he had no authority from the appellant to pay for the repairs in question; that appellant never had paid for any of such repairs; that in two or three instances he had advanced the messenger boys sums of money on his own account; that the sole object and purpose of his O. K.'ing the repair bills was to keep the appellee informed as to what messenger boys were in the employ of the appellant. His testimony that he had no authority from appellant to make any agreement whatever with reference to paying the repair bills in question is undisputed.

Reversed.

R. F. Cochran, for appellant.

None of the authorities cited in appellee's brief have any sort of application to the statute of frauds, nor to any question raised in the appeal.

Appellant's employees contracted the debts for the repair of their bicycles, and they were charged in the first instance to the employees as shows by the numerous bills, introduced in evidence, and appellee seeks to hold appellant responsible solely by the O. K. and initials of appellant's Manager.

Among the many meanings or definitions that have been given to the letters "O. K.," we have failed to find any authority which held that they mean a "promise to pay." Appellee cannot hold appellant responsible for the debts of its employees unless appellant has promised in writing to pay such debts, and the promise to pay, and the terms of the contract must be embodied in the writing, and parole evidence is inadmissible to explain the writing in any way whatever. There is no question in our mind of the integrity and righteousness of appellant's defense in this case. It is simply unthinkable, and contrary to all human action that appellee, operating his repair shop situated on the same block with appellant's office, would let an account of this amount run for twelve months without ever mentioning it to appellant's agents. The record shows that appellee practically did this, and stamps his present contention as unworthy of belief.

We again ask the court to reverse the judgment of the court below, and enter judgment here for appellant.

L. A. Shotts, for appellee.

Appellant is even trying to get this case reversed by claiming this case is in the statute of frauds. It would have been if appellee had not seen to it that appellant signed each and every bill with his O. K. and his initials "H. L. B." and when he signed that signature to them in writing, then appellant was standing good to appellee in writing and took it out of the statute of frauds, see Blacks Law Dictionary (2 Ed.), page 840, 3 Words and Phrases, 2d Series, page 666. Getchel & Martin Lumber Co. v. Peterson, 124 Iowa 599, 100 N.W. 550; Morganton Manufacturing Co. v. Ohio R. R. Co., 121 N.C. 514, 28 S.E. 474, 61 Am. St. Rep. 679; Citizens Bank v. Farwell, 56 F. 570; D. & W. R. R. Co. v. Sands, 32 N.E. 722; Board of Commissioners of Gannison County v. Hider, 107 P. 1068 & 1069, 47 Colo. 443.

Then appellant complains of the lower court letting appellee prove the custom and course of business of the telegraph companies in the city of Meridian, in regard to having the messenger boys' bicycles repaired, over his objection, appellee thinks the ruling of the lower court correct, see: First National Bank v. First National Bank, 22 S. 976; Henderson Boyd Lbr. Co. v. Cook, 42 S. 838; W B. Thompson & Co. v. Gosserand, 682; Shoe Company v. Long Bell Lbr. Co., 86 Mo.App. 438. Also see Digest of the Law of Evidence by Stephens, Art. 6, page 9, which...