Walker v. L. N. Dantzler Lumber Company

Decision Date17 February 1913
Citation103 Miss. 826,60 So. 1013
CourtMississippi Supreme Court
PartiesNOAH WALKER v. L. N. DANTZLER LUMBER COMPANY

October 1912

APPEAL from the circuit court of Harrison county, HON. T. H BARRETT, Judge.

Suit by L. N. Dantzler Lumber Company against Noah Walker. From a judgment for plaintiff, defendant appeals.

Appellee was plaintiff in the court below, and appellant was defendant. The plaintiff below filed this suit on open account for two hundred and ninety-four dollars, attaching to the declaration the sworn itemized statement. The defendant filed a plea, denying liability, and also claiming a set-off one item of the set-off being for services rendered by plaintiff and his sons in taking up certain cattle of defendant and making yokes, chains, and other gear for same. Another item was for certain logs alleged to have been delivered to plaintiff by defendant, for which defendant was never paid. Plaintiff introduced no evidence, except his sworn itemized account. The defendant claimed to have delivered these logs at the bank of the creek, under a contract with plaintiff to receive them and that he had branded them with the plaintiff's mark and left them there. It seems that they were carried away by high water. Plaintiff's agent had never measured them or taken them up, for the reason that he claimed that they were cut off of land the title to which was in dispute; but defendant claimed that the logs were eventually taken up by one of plaintiff's agents, who came along in high-water time and floated the logs to plaintiff's mill. The testimony is not clear on this subject. The defendant also claims that he had an agreement with one of plaintiff's agents that the mutual accounts between plaintiff and defendant should be balanced and wiped out, and that the open account sued on was, by this agreement, settled between defendant and plaintiff's agent. On the trial the court gave peremptory instruction to find for plaintiff, after crediting the account with the items for labor in getting up and equipping the cattle teams.

Reversed and remanded.

Mayes &amp Mayes, attorneys for appellant.

The court will recall that each of the parties to this suit claim that he has an account against the other; that under his plea of general issue, the defendant notified the plaintiff that at the trial of the case he would prove that before this suit was filed, the plaintiff and defendant agreed, the one with the other, that these accounts would offset the one against the other, and that any balance owing one way or the other, would be thereby wiped out.

In accordance with this notice, the defendant testified that sometime before this suit was filed he met Posey Powell, a representative of the plaintiff on the country road and that after discussing these accounts, it was agreed between them that the one account would offset the other, and that all balances would be thereby wiped out; that after making this agreement, the defendant gave the matter of his account no further thought, but "rested easy," thinking that the matter was closed. Posey Powell denied that he made such an agreement with the defendant.

Here we have a sharp conflict in the testimony, and, of course, under the universal rule, the question of whether or not such an agreement was made should have been submitted to the jury. If...

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3 cases
  • Murray v. Louisville & Nashville R. Co
    • United States
    • Mississippi Supreme Court
    • 15 January 1934
    ... ... Nashville Railroad Company. Judgment for defendant, and ... plaintiffs appeal. Affirmed ... 208; Hardy v. Masonic B. Assn., 103 Miss. 108, ... 60 So. 48; Walker v. Dantzler Lbr. Co., 103 Miss ... 826, 60 So. 1013; Mobile & O. Ry. Co ... ...
  • Miller v. Teche Lines, Inc
    • United States
    • Mississippi Supreme Court
    • 17 February 1936
    ... ... Masonic Benefit Assn., 103 Miss. 108, ... 58 So. 48; Walker v. L. N. Dantzler Lbr. Co., 103 ... Miss. 826, 60 So. 1013; M. & O. Ry ... his official actions while performing some work for the Bus ... Company in securing a parking space, be held not to be the ... agent of the ... ...
  • Gambrell v. Southern Moline Plow Co.
    • United States
    • Mississippi Supreme Court
    • 17 February 1913
    ...60 So. 1012 103 Miss. 824 J. D. GAMBRELL v. SOUTHERN MOLINE PLOW COMPANY No. 15,812Supreme Court of MississippiFebruary 17, 1913 ... ...

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