Taylor v. De Soto Lumber Co.

• Decision Date: 22 December 1924
• Docket Number: 24569
• Court: Mississippi Supreme Court
• Parties: TAYLOR v. DE SOTO LUMBER CO. *

102 So. 260

137 Miss. 829

TAYLOR v. DE SOTO LUMBER CO. *

No. 24569

Supreme Court of Mississippi

December 22, 1924

Suggestions of Error Overruled. March 2, 1925.

(In Banc.)

1 TRIAL. Direction of particular verdict improper, when one to contrary be justified by evidence.

The trial court should not direct the jury to return a particular verdict when one to the contrary will be justified by the evidence.

2. LIMITATION OF ACTIONS. "Acknowledgment" or promise that will save bar of statute of limitations described.

An acknowledgment or promise that will save the bar of the statute of limitations must identify the debt, and acknowledge or promise to pay a definite amount, unless the debt is evidenced by a written instrument from which the amount due thereon can be ascertained by calculation, in which event the amount due need not be stated in the acknowledgment or new promise.

3. LIMITATION OF ACTIONS. Debtor's statement held not acknowledgment or promise such as would save bar of statute.

In response to a request by the debtor therefor, the creditor mailed to the debtor a statement of his account with the creditor, and in response thereto the debtor wrote the creditor as follows: "Enclosed find check for one thousand dollars, part payment of account. Will take care of balance a little later." This was not such an acknowledgment of or promise to pay the debt as will save the bar of the statute of limitations.

ANDERSON and COOK, JJ., dissenting.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of Panola county., HON. GREEK L. RICE Judge.

Action by the De Soto Lumber Company against Hal Taylor. From judgment for plaintiff, defendant appeals. Reversed and dismissed.

(In Banc. On Suggestion of Error. March 2, 1925.)

TRIAL. Trial court should not direct verdict when one to contrary will be justified by evidence.

The trial court should not direct the jury to return a particular verdict when one to the contrary will be justified by the evidence.

On suggestion of error. Former opinion modified, and suggestion of error overruled.

For former opinion, see 102 So. 260.

Reversed and remanded. Suggestion of error overruled.

Mack & Manship, for appellant.

The court below committed error, first, in allowing the plaintiff to file a copy of the account taken from the books as an exhibit to his testimony and in giving a peremptory instruction for the plaintiff, when the only evidence as to the correctness of the account was the statement of the plaintiff to the effect that the account was correct. Second, the court committed error in allowing the witness Mr. Adler, to testify, that the lumber was charged on the books to the defendant Hal Taylor. Third, the lower court committed error in giving a peremptory instruction for the full amount when plaintiff's testimony goes to show that a large part of the account was barred by the statute of limitation. Fourth, the court erred in giving a peremptory instruction to the plaintiff when the testimony showed that the defendant had not bought any lumber from the plaintiff and that the contractor, Eberhart had no authority from defendant to buy lumber from plaintiff and have same charged to defendant.

The account sued on is a very long itemized account amounting to the large sum of twenty-six hundred dollars and consisting of practically all of the lumber and material that went into the building of an expensive house. The only testimony introduced on behalf of the plaintiff was the testimony of James C. Adler, one of the partners of the De Soto Lumber Company, who did not bring his books with him and did not testify from his books but merely took a copy of the account taken from the books and introduced it into evidence, filing it as an exhibit to his testimony and stating that it was correct and that he knew it to be correct. It is held in Moody v. Roberts, 41 Miss. 74, that a copy of an account proven by witness to be correctly transcribed from the books is not admissible as evidence. The defendant denied each and every item of the account and testified that the contractor was building several houses at Crenshaw at the time that he was building defendant's house and that as likely as not the lumber that had been shipped and charged to the defendant had been used by the contractor on the houses of other persons in the town of Crenshaw under instruction of contractor Eberhart. It was the defendant's contention that the account was the account of A. Eberhart and that in the first instance the account had been charged to Eberhart, and that if the books of Original Entry were introduced they would probably show that the account was in reality charged to the contractor, A. Eberhart, who had ordered the material. The court should not have allowed the witness Adler to testify over the objection of the defendant, that the lumber had been charged on the books to Mr. Hal Taylor, Crenshaw, Mississippi. This was objected to by the defendant on the ground that the books were the best evidence of this fact. However, the objection was overruled and the witness was allowed to testify that the lumber was charged on the books to Mr. Taylor, the defendant. This is manifestly error.

The evidence tends to show that the six hundred seven dollars and twenty-eight cents balance of the account was barred by the three-year statute of limitation, except the items of one hundred twenty dollars, fifty dollars on the account dated February 9, 1920, and May 3, 1920, respectively. The statute of limitation was pleaded by the defendant; from the plaintiff's own sworn account all of it was barred except the sum of one hundred seventy dollars, yet in spite of this fact the court gave the plaintiff a peremptory instruction for the sum of six hundred seven dollars and twenty-eight cents. It is true that the exhibit as filed by the witness Adler, as an exhibit to his testimony appears to show a different state of facts. An account is filed showing most of it to be barred and another account showing a different state of facts. Surely on this conflicting state of fact a peremptory instruction should not have been given for the full amount. The court should have allowed the case to go to the jury on the question of the ratification of the unauthorized act of the contractor, Eberhart. The burden was upon the plaintiff to prove the ratification and adoption of the unauthorized act of Eberhart. The burden was upon them to prove by a preponderance of the evidence that Taylor accepted the debt as his debt with full knowledge of all of the facts and with the intention of assuming liability for the debt regardless of whether or not he would have to pay it to the De Soto Lumber Company over and above the contract price for the house. It would seem to us that it would require the very strongest of evidence to show that Taylor intended to assume Eberhart's debt, when he had paid Eberhart all that was coming to him. To conclude that Taylor ratified the unauthorized act of Eberhart in having the lumber charged to him is to conclude that he intentionally assumed the debt that was not his own and agreed to pay a debt for which he was not responsible. To conclude that he ratified the act of Eberhart in charging the lumber to him is to presume that he intentionally agreed to pay twice for the lumber when he was under no sort of legal or moral responsibility so to do. The evidence of ratification of such an act would have to be very strong indeed, even to carry the question to the jury, yet the court held in this case absolutely that Taylor had ratified the unauthorized act of Eberhart and had obligated himself to pay twice for this lumber even though he had not in any way authorized it to be charged to him and had even thought it was Eberhart's place to pay for it. The only evidence at all of ratification is the two letters written by the defendant, one in which he stated that the house was about completed and he desired to have a settlement with Mr. Eberhart and asked for a statement of the account. The other letter being written five days after in which he stated that he enclosed check for one thousand dollars on the account and would take care of the balance a little later. His explanation of this letter is that Mr. Eberhart requested him to send them one thousand dollars and that he sent them the one thousand dollars to be taken out of the contract price of Mr. Eberhart and that he did expect to send them the balance to be taken out of the contract price but on having a settlement with Mr. Eberhart, found that Eberhart had overdrawn the amount of the contract price and that he had paid him the full contract price although the house was not quite completed. That he did not understand that the De Soto Lumber Company was looking to him personally for the account and that he understood that the account was Eberhart's account and that he only intended to pay the balance provided there was that much due to Eberhart. At the time these letters were written, all of the lumber and material had been shipped. These letters had nothing at all to do with the making of the bill. The plaintiff had according to its own testimony charged the lumber to Taylor without any sort of authority from him. All of the material had been shipped when the letter was written and the statement by Taylor to the effect that he would send the check, was purely a voluntary statement on his part. There was no consideration from the De Soto Lumber Company, nor did it prejudice them in any way.

Can it be said that there was no evidence that the act was not ratified? Taylor, himself, says that he did not ratify it. The defendant explained the letters and stated that he did not understand that he was to be held responsible for the lumber. His explanation of the...