Spann v. Grant

• Decision Date: 23 November 1903
• Citation: 35 So. 217,83 Miss. 19
• Court: Mississippi Supreme Court
• Parties: MAJOR SPANN ET AL. v. MORRISON R. GRANT

35 So. 217

83 Miss. 19

MAJOR SPANN ET AL. v. MORRISON R. GRANT

Supreme Court of Mississippi

November 23, 1903

FROM the circuit court of Lauderdale county. HON. GUION Q. HALL Judge.

Grant appellee, was plaintiff, and Spann and others, were defendants in the court below. From a judgment in plaintiffs' favor against Major Spann and his wife, T. M Spann, two of defendants, they appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

W. T. Houston and Miller & Baskin, for appellants.

There cannot be any difference of opinion about the conclusion that the jury were bound to reach--that is, that if Oliver was not liable the Spanns were, so that the case was practically settled by the court's giving a peremptory instruction to find against the Spanns, although there was testimony showing that they were in no wise liable for any lumber or materials furnished by the plaintiff.

The lumber was ordered altogether by Oliver, used by Oliver, and charged on the plaintiffs' books to Oliver, and plaintiff received check from Oliver, and never undertook to collect the debt against the Spanns until after Oliver had broken down on the contract which he had entered into with the Spanns to construct the house.

All of the testimony is that the lumber was obtained from the plaintiff by Oliver, who was, at the time that he was engaged in the construction of the house for the Spanns in the construction of the Beeson House, and other houses; he was at this time buying lumber from the plaintiff to be used in the construction of the several houses then being constructed by him.

The case of Kimbrough v. Ragsdale, 69 Miss. 674, settles the question that the plaintiff, under his declaration in this cause, cannot and ought not to have had a verdict. In that case this court declared that a suit on a joint obligation would not authorize a recovery in severalty and this is on allfours with the case at bar, and should preclude the recovery by the plaintiff in this case.

The case of Bloom v. McGrath, 53 Miss. 249, also establishes the proposition that the Spanns cannot be held liable in this cause, because there was no writing by which they bound themselves to pay Oliver, and which had been by the plaintiff charged to Oliver on his books, and for which plaintiff had received payments from Oliver for the lumber which went into the building.

A. S. Bozeman, for appellee.

The judgment should be affirmed for four reasons:

1st. Because there was no variance.

2d. Because in a suit of this kind, on an implied promise to pay for goods sold and delivered, and to enforce a material man's lien, all the defendants were proper parties.

3d. Because the case has been fairly tried and justice has been done, and another trial could only result in a judgment for appellee.

4th. Because the error complained of by the appellants, if it be an error, has been cured by the verdict.

The proof of the liability of the appellant is clear and overwhelming. No harm resulted to them because Oliver was sued also, and they cannot complain of the judgment against Oliver. The verdict against appellant is well supported by the evidence.

OPINION

WHITFIELD, C. J.

This is an action by M. R. Grant against Major Spann, T. M. Spann and Albert Oliver, jointly. The declaration in this case contains two counts. In the first count, the plaintiff sought to charge defendants, jointly, for the value of the lumber alleged to have been sold and delivered to them at their request. The second count contains two parts. In the first part, plaintiff seeks to enforce a mechanic's lien for the lumber. In the second part of the second count, the plaintiff seeks to bind the amount alleged to be still in the hands of the owners--the two Spanns--and due to the...