Victor v. Adams

• Decision Date: 09 November 1925
• Docket Number: 25132
• Citation: 140 Miss. 643,106 So. 433
• Court: Mississippi Supreme Court
• Parties: VICTOR et al. v. ADAMS. [*]

106 So. 433

140 Miss. 643

VICTOR et al. v. ADAMS. ^[*]

No. 25132

Supreme Court of Mississippi

November 9, 1925

Division A

Suggestion of Error Overruled Jan. 4, 1926.

APPEAL from chancery court of Jackson county, HON. V. A. GRIFFITH Chancellor.

Suit by P. H. Adams against C. A. Victor, J. S. Delmas, and others. From a decree for complainant, the named defendants appeal. Affirmed in part, and reversed in part.

Affirmed in part; reversed in part.

White & Ford, for appellants.

I. Liability against the two appellants here was based by the trial court on the fact that they served as a committee of the association in arranging for the purchase of the hampers in question. Adams admitted that Victor's statement was substantially correct. Outside of any other question in the case, we respectfully submit that the court should reverse the finding of the chancellor on this issue, because the proof is all one way.

II. The next point we advance is that appellants, as a matter of law would not be liable for the purchase of the hampers under the circumstances detailed by the witnesses, even though Adams, as a matter of fact, did sell the merchandise to the association, and even though appellants had bought the merchandise for the association. There are only two possible views to be taken of the matter; namely, first, the committee composed of appellants either arranged with Adams for the merchandise for the benefit of the members, to be paid for by them; or, second, the committee bought the merchandise for the association.

Taking the case most favorably to appellants, the most that could be said against them would be that they were authorized as a committee of the association to obtain hampers. They went to Long Beach and bought the hampers for the association on a deferred payment basis. Would they be personally liable then for the goods so bought? We have not been able to find any authority holding that they would be so liable. On the contrary, the law is the other way. Whitehead & Hoag Co. v. Donovan, 210 Ill.App. 268; Little Rock Furniture Co. v. Kavanaugh, 111 Ark. 575, 164 S.W. 289, Ann. Cases 1916-A 848; Owens v. Hadley, 186 Mo.App. 1, 171 S.W. 973.

We are not unmindful of the general rule that where officers of an unincorporated non-trading organization contract within the scope of their authority for something to be done, such officers might be liable on the principle of agency; yet it is the law, as stated by the above and other cases, that where the party furnishing supplies to such an organization knows the condition and is aware that there are no funds available and he looks to the association for payment, the representatives of the association who acted in its behalf are not personally liable. Taking the case most strongly for the appellee, he is not entitled to recover under the authorities; and taking the case as made by appellants' witnesses, he was not entitled to recover on the facts.

III. Appellants are not liable under the statute of frauds. It is undisputed that the arrangement for these hampers was verbal, and no writing was signed at any time by the association or appellants. It is not shown that appellants received these hampers or had anything whatever to do with them after they were shipped. Furthermore, it is not shown that they were connected in any manner with the hampers shipped before that time or after that time. We advance the contention, therefore, that under the statute of frauds, appellants could not possibly be liable for this account or any part of it, because the sale, if it were a sale, was oral, no part of the purchase money was paid, and the goods were not received by appellants, nor by any one authorized by them to receive said goods. The court will remember that Hayes was the joint agent of Adams and the association, each paying one-half his salary. When he received the carload of hampers sent in the name of Adams and receipted for it in the name of Adams, he manifestly received them for Adams and not for appellants. It was in testimony that Mr. Hayes was to handle the hamper matter for Mr. Adams. The case is entirely unlike, therefore, a case where an agent for an association signed his name individually to a writing in behalf of some association of which he was a member or for which he was authorized to act. Under the statute of frauds they are not liable.

Ross & Backstrom, for appellees.

I. Counsel for appellants argue that this court should reverse this case on the finding of fact by the chancellor. The rule is hoary with age that this court will not disturb a finding of fact by the chancellor if there be credible testimony in the record upon which the finding can be based. The testimony, upon which the chancellor based his finding in this case, is clearly, forcefully and eloquently discussed, analyzed and set forth in his opinion.

II. The next contention of the appellants is that even though the appellants did go to Long Beach, Mississippi, and bought the hampers for the Pascagoula Truck Growers Association, they were not personally liable for payment therefor. Upon this proposition this court has twice spoken and each time it has spoken liability. Evans v. M. C. Lilly & Co., 48 So. 612; Alkahest Lyceum System v. Featherstone, 74 So. 151. The overwhelming weight of the testimony in this case, and the chancellor so found, is that the appellants here went to the appellee's place of business at Long Beach, as a committee from the Pascagoula Truck Growers Association and there bought the hampers in question on credit, which hampers were delivered, and we respectfully submit that under the Alkahest case and the Evans case, supra, there was no other decision which could be rendered by the court below. The cases have settled the decisive point in this case, and we submit that there is no other decision that this court can make than an affirmance of the decree of the court below.

III. We now come to the proposition of the appellants that they are not liable under the statute of frauds. This argument seems to proceed upon the theory that the hampers were never delivered to the Pascagoula Association, but were delivered to the appellee's agent, Hayes, at Pascagoula. The facts in the case sufficiently answer this contention. Furthermore, the statute of frauds was neither pleaded nor raised in any other manner in the court below, and is raised for the first time in this court. The statute of frauds defense, as all other defenses, must be pleaded or otherwise properly raised in the court below to be effective in this court.

As to the taxation of the costs, the law provides that the successful litigant recovers his cost always, and there is no exception to the rule of which we have ever heard except in the matter of a cloud of witnesses. At any rate, this court is not the right forum to raise such a question. If appellants were aggrieved at the taxation of the costs in the court below; that court was the proper forum in which to raise the question. The record discloses the fact that this question was not raised.

White & Ford, in reply for appellants.

Counsel for appellee place their entire reliance for affirmance on Evans v. Lilly, 95 Miss. 48, and Alkahest Lyceum System v. Featherstone, 74 So. 151. These cases, we submit, are wholly off the point. The Alkahest case shows that when the matter of signing the entertainment contract came up, two officers of the association signed it personally, without calling to the attention of the other contracting party that they were acting for the Civic League, or that the Civic League had no funds, nor was it shown who was to be responsible for the performance of the contract entered into by the officers of the League. The case, therefore, is entirely different from that presented herein, where appellee, Adams, admits that the committee told him that the association had no funds, that the hampers were to be used by individual members of the association, no terms of payment were fixed, and, furthermore, appellee, Adams, himself was a party to the contract, which was to provide money with which to pay for this merchandise, in that he, as an expert, was to market the produce of the members. Moreover, in the Alkahest case there was a written contract signed by the two ladies, whereby they unequivocally undertook to do certain things. In the Lilly case certain officers of an association signed promissory notes, which, of course, definitely agreed to pay a certain sum, at a time named. There was, therefore, a written contract, evidencing the liability of the maker. There was no reservation; the promise was unequivocal and in writing. It will be appreciated, therefore, that in both of these cases which are said to constitute authority against us, that here was a definite agreement in writing to pay and perform in a certain amount. In the case presented by this record, the liability sought to be imposed on appellants is one that must be implied from facts and circumstances and not from any express undertaking or obligation. The cases, therefore, are wholly different.

In our original brief we cited three cases squarely in point, we think, holding that committees of a voluntary association are not liable under circumstances like these. 25 R. C. L., page 65, sec. 21, states the general rule. See also Little Rock Furniture Co. v. Kavanaugh, 111 Ark. 575, Anno. Cases 1916 A. 848. The other two cases are Cheeney v. Clark, 3 Ver. 431, 23 Am. Dec. 219, and Whitfor v. Laidler, 94 N.Y. 145, 46 Am. Rep. 131.

Counsel next discuss the assignment of error relative to the erroneous taxation of cost. After reading the argument carefully, we fail to find anything to justify the court in imposing on appellants the cost of serving about one hundred defendants in the...