Wade v. Long

• Decision Date: 01 January 1934
• Docket Number: 30923
• Citation: 151 So. 564,168 Miss. 434
• Court: Mississippi Supreme Court
• Parties: WADE et al. v. LONG

151 So. 564

168 Miss. 434

WADE et al. v. LONG

No. 30923

Supreme Court of Mississippi

January 1, 1934

Division A

1. FRAUDS, STATUTE OF.

Oral agreement by adult patient's father and brother that they would pay patient's hospital and medical bill if patient died held unenforceable as special promise to answer for another's debt (Code 1930, section 3343).

2. FRAUDS, STATUTE OF.

Test whether promise to answer for another's debt must be in writing to be enforceable is whether party originally liable for debt continues liable (Code 1930, section 3343).

HON. J I. STURDIVANT, Judge.

APPEAL from circuit court of Oktibbeha county HON. J. I. STURDIVANT Judge.

Action by Dr. F. B. Long against H. M. Wade and another. Plaintiff recovered judgment in the justice of peace court and in the circuit court, and defendants appeal. Reversed and rendered.

Reversed, and judgment here for appellants.

Brown & Hartley, of Starkville, for appellants.

Inasmuch as this suit was based on an alleged oral promise to pay the hospital bill of Joe Wade, the only issue was whether or not the appellants made the alleged promise, and if so, whether the statute of frauds applied.

Section 3343, Mississippi Code of 1930, provides, "An action shall not be brought whereby to charge a defendant or other party: (a) Upon any special promise to answer for the debt or default or miscarriage of another person. . . . Unless, in each of said cases, the promise or agreement upon which such action may be brought or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith or some person by him or her thereunto lawfully authorized in writing."

The alleged promise of appellants was a collateral obligation and not an original obligation.

Allen v. Smith & Brand, 160 Miss. 303, 133 So. 599; Hannah v. Covington, 155 Miss. 825, 125 So. 418.

Other cases in which the Statute of Frauds has been applied, and which bear resemblance to the present case are:

White v. Cox, 38 So. 344; Craft v. Lott, 40 So. 426, 87 Miss. 590; Vicksburg Mfg. Co. v. Jaffray, 49 So. 116, 94 Miss. 282; True-Hixon Lumber Co. v. McDonough, 123 So. 855, 154 Miss. 587; Palmer v. Spencer, 137 So. 491; Taylor et al. v. Sayle, 142 So. 3; United States Fidelity & Guaranty Co. v. Parsons, 122 So. 544.

Daniel & Greene, of Starkville, for appellee.

This case is absolutely on "all fours" with Biglane v. Hicks, 33 So. 413, Vicksburg Infirmary v. Hinds, Director General, 98 So. 530. The facts in these cases are identical with the facts in this case, except this case is stronger, much stronger. In the case referred to it was not shown in the evidence whether the account was charged to the litigant or the patient, but in this case it is shown by the evidence and the books of the hospital that this account was originally charged to appellants.

OPINION

McGowen, J.

The appellee, Dr. Long, sued H. M. and Hugh Wade on an open account in a court of a justice of the peace where he recovered judgment, and the Wades appealed to the circuit court where the issue was tried, submitted to a jury, and a verdict for Dr. Long was rendered. The Wades prosecute an appeal to this court.

The facts necessary to state are these: Joe Wade became seriously ill and was carried by his physician to the hospital which belonged to Dr. Long. The suit is to recover the hospital bill, medical bill, and for services of Dr. Long rendered to Joe Wade while he was in the hospital. Joe was the son and brother, respectively, of H. M. and Hugh Wade.

On direct examination Dr. Long testified that the account was created and the services rendered at the instance and request of H. M. and Hugh Wade for and on behalf of Joe Wade, their kinsman, who was more than twenty-one years of age and who had been paying his own bills for a long time. Upon this statement on direct examination the plaintiff in the court below had made out a case of liability. The conversation was denied by the Wades.

On cross-examination of Dr. Long the followhig evidence was adduced:

"Q. Doctor, if I understand you, the promise that Mr. Monk Wade made on the morning following the time that the boy was taken to the Hospital was that if the boy lived, he would pay it as he had enough property to pay it, and if he didn't live that Mr. Monk Wade and Mr. Hugh Wade would see that it was paid? A. I am not positive that it was the first morning after the boy came there, but it was the first time that he came there to see him. That was the substance of what he said to me.

"Q. That is the promise that Mr. Wade made to you? A. They made it together. That was the agreement they made.

"Q. But you don't remember which one made that statement to you? A. All three of us were talking. It was agreeable to all three of us.

"Q. That was the promise that you relied on and that you brought this suit on? A. Yes, sir.

"Q. When you made that promise, you were holding Mr. Joe Wade liable for his account, and you figured that Mr. Monk Wade and Mr. Hugh Wade would be securities to see that it was paid? A. He was in the Hospital at that time, and it wasn't a closed agreement. A Hospital record isn't complete until the patient is discharged or dies. If the boy had gotten well, it would have been charged to Joe.

"Q. You were looking to them to pay it if Joe's property down here wasn't enough to pay it? A. I was looking to them to pay it if Joe died, and to him if Joe lived. If you will pardon me, I will answer that question you asked a while ago. You wanted to know why these accounts came in here as they do. The book with that account in it was filled up. I had an old ledger there, and it was overlapping. This is a transcript of our revised account of the old...