True-Hixon Lumber Co. v. McDonough

• Decision Date: 30 September 1929
• Docket Number: 27982
• Citation: 123 So. 855,154 Miss. 720
• Court: Mississippi Supreme Court
• Parties: TRUE-HIXON LUMBER CO. v. MCDONOUGH

123 So. 855

154 Miss. 720

TRUE-HIXON LUMBER CO. v. MCDONOUGH

No. 27982

Supreme Court of Mississippi

September 30, 1929

Division B

APPEAL from circuit court of Lafayette county, HON. B. N. KNOX Special Judge.

Action by William McDonough against the True-Hixon Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.

Reversed and remanded.

L. C Andrews, of Oxford, for appellant.

To sustain a recovery the allegations of the declaration and the proof must correspond. There cannot be a recovery on proof which is not responsive to and based upon the pleading of the party plaintiff.

Abrams v. Allen, 109 Miss. 689, 68 So. 927; Isler v. Isler, 110 Miss. 419, 70 So. 455.

The alleged promise upon the part of defendant to answer for the debt of Martin was not in writing. The promise is non-enforceable because within the Statute of Frauds.

Sweatman v. Parker, 49 Miss. 29; Forth v. Stanton, 1 Saunders, 211.

There was a fatal variance between the allegations of the declaration and the proof, and the evidence failing to sustain the allegations of the declaration, the court should have directed the jury to find for the defendant.

Illinois Central R. Co. v. Fowler, 86 So. 460; Boggs v. Jewett, 90 So. 13.

The instructions given, taken as a whole, do not, in the absence of the instruction refused, correctly announce the law.

Childress v. Ford, 10 S. & M. 25; Payne v. Green, 10 S. & M. 507.

J. W. T. Falkner and Jas. Stone & Sons, all of Oxford, for appellee.

Taking the evidence as most favorable to the appellee, it is shown, that there was a memorandum in writing, accepted by appellant and demanded at the trial but not produced nor the failure to produce it explained. However, it is appellee's contention that it was not necessary in this case to have the promise of appellant in writing because, first, this was a typical case of where funds were placed in the hands of appellant for the particular purpose of paying this debt, and, second, because this was a promise which it had assumed and not a promise to pay the debt of Martin. Martin remained liable to appellee only secondarily. We contend that the promise is not within the Statute of Frauds.

Moore v. Kirkland (1916), 112 Miss. 55, 72 So. 855; Palmer v. Bridges (1928), 151 Miss. 12, 117 So. 328; Sweatman v. Parker (1873), 49 Miss. 19; Olive v. Lewis (1871), 45 Miss. 203; Lee v. Newman (1877), 55 Miss. 365; Home Insurance Co. v. Moore & Rawls (1928), 151 Miss. 189, 117 So. 524.

There was sufficient evidence to submit the case to the jury and therefore to support the verdict.

23 C. J. 12; Lowe v. M. & O. R. Co. (1928), 149 Miss. 889, 116 So. 601.

OPINION

ETHRIDGE, J.

William McDonough sued the True-Hixon Lumber Company, a corporation, under a declaration alleging as follows: "On or about the 4th day of November, 1926, one George Martin was indebted to the plaintiff in the sum of five hundred sixty-one dollars and thirty-five cents. On or about said date the defendant, the True-Hixon Lumber Company, a corporation of the state of and doing business in the state of Mississippi, at Oxford, Lafayette county, Mississippi, agreed and promised to pay to the plaintiff the said sum, together with the consent of said George Martin and plaintiff thereupon cancelled said indebtedness against the said George Martin. Although often requested to pay said sum of five hundred sixty-one dollars and thirty-five cents, the defendant has consistently failed and refused to pay said sum or any part thereof. Wherefore," etc.

The defendant filed a plea of the general issue denying that it had ever promised to pay the plaintiff in the manner and form set forth in the declaration, and also a plea of the statute of frauds because the alleged promise was not in writing, or not alleged to be in writing.

The plaintiff in the proof under his declaration showed that instead of a novation as declared on in the declaration, the said Martin was indebted to him in the sum of something over one thousand one hundred dollars; that Martin became dissatisfied and approached the True-Hixon Lumber Company to sell lumber to it, and as a result of the negotiation between Martin and the True-Hixon Lumber Company an agreement was reached between McDonough and the True-Hixon Lumber Company that the True-Hixon Lumber Company would give its check for five hundred sixty-one dollars in part payment of the said indebtedness and would take over a deed of trust which McDonough had on the sawmill outfit and tractor owned by Martin, and would thereafter buy from Martin such lumber as he sawed, and also buy lumber on the yard of McDonough, and out of the lumber so bought would retain one dollar and fifty cents per thousand on the sale price of the lumber procured from Martin, and after paying the cash advanced, five hundred sixty-one dollars, would thereafter retain one dollar and fifty cents per thousand out of the lumber so purchased and pay McDonough thereon until the Martin debt was paid. McDonough, also as a part of the arrangement, took a second deed of trust on the sawmill outfit and tractor together with a note of Martin, and testified that he did not release Martin from liability. ...