Sanders v. Leake & Goodlett

• Decision Date: 03 November 1930
• Docket Number: 28940
• Citation: 158 Miss. 424,130 So. 489
• Parties: SANDERS v. LEAKE & GOODLETT
• Court: Mississippi Supreme Court

130 So. 489

158 Miss. 424

SANDERS v. LEAKE & GOODLETT

No. 28940

Supreme Court of Mississippi

November 3, 1930

Division B

APPEAL from circuit court of Monroe county, HON. C. P. LONG, Judge.

Action by Leake & Goodlett against M. H. Sanders. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Judgment reversed and cause remanded.

Paine &amp Paine, of Aberdeen, for appellant.

If the evidence is conflicting as to whether the credit was extended to the party sought to be charged or to the party receiving the goods, then it is a question for the jury.

Morgan v. King, 128 Miss. 401; Jones v. Griffith, 126 So 35-37.

Leftwich & Tubb, of Aberdeen, for appellee.

Where a mistake is made in reference to the quantity of goods, the buyer must accept all, or refuse to accept any, and give the seller notice of the mistake, and that the goods are subject to his order. He cannot deal with the goods as his own without rendering himself liable for the purchase price.

Benjamin on Sales, 160; 1 Williston on Sales, pages 634-5, section 282; Ormond v. Henderson, 77 Miss. 34.

The delivery of the title papers to Spencer by appellant and the use of the material by him in appellant's building with appellant's consent concluded the appellant from in any manner disputing the purchase.

American Steel, etc. v. Searles, 93 Miss. 101.

Acceptance will be implied if the buyer retains and uses goods as his own.

35 Cyc. 259; Stillwell v. Biloxi, 78 Miss. 779.

Argued orally by Thos. Fite Paine, for appellant, and by Geo. J. Leftwich, for appellee.

OPINION

Ethridge, P. J.

The appellees sued M. H. Sanders and J. T. Sanders, alleging that M. H. Sanders and J. T. Sanders, trading under the name and style of M. H. Sanders & Son, during the month of June, 1929, became indebted to the plaintiffs in the sum of seven hundred seventy-four dollars and forty cents for goods, wares, and merchandise sold by the plaintiffs to the defendants. The declaration averred that the materials so sold were used in the erection of a brick store, warehouse, and shed in the city of Aberdeen, describing the lot upon which the building was erected; and averring that they had a lien upon the building and lot for the purchase of said supplies and materials, and demanded judgment, etc. To the declaration was attached, as exhibits, several separate bills. The first bill attached is dated June 10, 1929, reading, "sold to M. H. Sanders and Son, Aberdeen, Mississippi," followed by the items and being for two hundred and four dollars; the second bill attached is date June 12, 1929, "sold to M. H. Sanders and Son, Aberdeen, Mississippi," followed by items amounting to two hundred and four dollars; the third is dated June 18, 1929, "sold to M. H. Sanders and Son, sixteen thousand common brick at twelve dollars, . . . one hundred ninety-two dollars;" the next bill is dated June 18, 1929, marked "sold to T. H. Sanders and Son, Aberdeen," followed by the items and being for twenty dollars and sixty cents; the next account, dated June 28, 1929, is marked "sold to J. H. Sanders and Son. Shipped to D. L. Spencer," followed by items amounting to two hundred fourteen dollars and twenty-five cents; the next is dated June 29, 1929, and marked "sold to J. H. Sanders and Son. Called for, for five thousand common brick, nine dollars and seventy-five cents. Forty-eight dollars and seventy-five cents;" and this is followed by a credit memorandum of "7-29-29. We credit. M. H. Sanders and Son," followed by items of allowance amounting to one hundred nine dollars and twenty cents.

J. T. Sanders filed a special plea, sworn to, denying that he was a member of the partnership of M. H. Sanders & Son, and the suit thereafter proceeded against M. H. Sanders. M. H. Sanders filed an affidavit in which it is stated that she makes oath "that the account sued on in this case is incorrect, in each and every item and is not due and owing by her to the said plaintiff. That she does not owe the plaintiff a cent and did not owe plaintiff any sum prior to the filing of this suit." M. H. Sanders filed a plea of general issue and gave notice under the plea of general issue that she would offer evidence to prove that the defendant had entered into a contract with D. L. Spencer to furnish all materials except the wiring, plumbing, and steel beams and brick over the scales, and to build for her at a stated consideration the store building in Aberdeen, Mississippi, described in the plaintiff's declaration, which contract was attached to the notice of the general issue, and that the contract with Spencer by M. H. Sanders was for a lock and key job. That he was to furnish all the brick and other material necessary to build and complete said store building, except wiring, plumbing, and brick and beams for the shed over the scales. That the said contract with said Spencer, the person contracted with, contracted to purchase all material for use in the building, including the material sued on in this cause. That the said contractor did purchase said bill of goods sued on from the plaintiffs; and that the defendant never at any time gave any written or oral order to the plaintiffs for said material, never at any time assumed payment of same. That the contractor notified said plaintiffs that he had the contract and informed plaintiff of the terms of the said contract, and all materials used in the said building were sold to the said contractor and on his responsibility alone and not on that of the defendant. That the defendant had paid the entire amount of the contract to the said contractor, Spencer, without notice of any kind from plaintiffs that Spencer was due the plaintiffs any sum, or that the amount was unpaid, and the plaintiffs looked alone to the contractor in selling said material for the contract price thereof.

It was agreed that the bill for the materials sued on was correct as to items and price, and that they went into the building. The plaintiffs testified that Spencer came to their place of business and made out an order for fifty thousand dollars brick and left the order with them, but that they did not sell to Spencer and would not sell to him because he had been foreclosed several times and was insolvent. That they called, on the phone, Mrs. M. H. Sanders & Son at Aberdeen, Mississippi, and that J. T. Sanders answered the phone, and that they stated to Sanders that they would not sell to Spencer the material desired but would be glad to ship it to M. H. Sanders & Son, and that J. T. Sanders, who was manager for M. H. Sanders in said business, told them to let it come, and that they billed the goods out to M. H. Sanders & Son, addressed to them at Aberdeen, Mississippi; the stationery had their return address thereon and the said letters never returned. That the goods were sold on the credit of M. H. Sanders & Son in pursuance of the said phone conversation, and the goods were shipped to M. H. Sanders & Son and were delivered by the railroad company. That subsequent to the shipping of the said goods, and when all of them were practically incorporated in the building, they wrote M. H. Sanders & Son a letter requesting payment and received a reply thereto denying liability, claiming that they had not purchased the same; that the goods had been purchased by Spencer. That plaintiff made a trip to Aberdeen, Mississippi, to adjust some differences as to some of the brick shipped, and that all the material, except the plate glass, had been used in the building. That they went to Spencer and told him not to put the plate glass in; they would send for it, as Sanders was trying to repudiate the contract. That thereupon Sanders made out a check payable to Spencer and that Spencer indorsed the check over to plaintiff to pay for the plate glass, but that they distinctly notified Sanders that their acceptance of the check was in no wise prejudicial to their claim for the other material.

The testimony of the defendants, through J. T. Sanders as manager and Spencer, the contractor, was to the effect that M. H. Sanders had made no contract for the material from the plaintiffs, but had made a contract with Spencer for a lock and key job, Spencer to furnish all materials and labor.

At the conclusion of the testimony, the trial judge gave a peremptory instruction for the plaintiffs for the amount sued on, less the item for twenty dollars and sixty cents. As the court gave a peremptory instruction for the plaintiffs, the testimony of the defendants must be accepted as true together with all inference that may be legally and properly drawn therefrom. The court refused to permit the contract between Sanders and Spencer to be introduced in evidence, holding that it was a question solely as to whether there was a contract between the plaintiffs and M. H. Sanders.

J. T. Sanders then testified that he had a conversation with Mr. J. M. Thomas, Jr., of the plaintiffs, and was asked to state exactly what was said over the phone and answered:

"He called me over the telephone and wanted to know if I was J T. Sanders and I told him I was, told me he had an order from Mr. Spencer for fifty thousand brick, said Mr. Spencer said he had a contract to build the store and wanted to know if he had the contract and I told him he did, and he said, 'That's what I wanted to know before we shipped this brick.'

"Q. Did you at any other time have any other conversation with J. M. Thomas about this contract? A. No.

"Q. Now, this Mr. Leake, the last witness who testified that he had a talk with somebody about June 18, 1929, with reference to the plate for this store building, or some store, please state whether you ever had any conversation in June or any other time with Mr. Medford E. Leake? A. No,...