Yates v. Houston & Murray

• Decision Date: 30 November 1925
• Docket Number: 24846
• Citation: 141 Miss. 881,106 So. 110
• Parties: YATES v. HOUSTON & MURRAY. [*]
• Court: Mississippi Supreme Court

106 So. 110

141 Miss. 881

YATES v. HOUSTON & MURRAY. ^[*]

No. 24846

Supreme Court of Mississippi

November 30, 1925

Division B

1 TRIAL. Evidence, on request for directed verdict, to be taken most strongly in favor of other party.

In determining propriety of directing verdict for defendants the evidence must be taken most strongly in favor of plaintiff; that is, every material fact which the evidence tends to prove in his favor must be taken as true.

2. SALES. Form of account held immaterial, except on disputed question of supplies being furnished on defendants' credit.

If the credit, represented by an account for automobile repairs and supplies furnished by plaintiff to H., was extended to defendants under arrangement by them with him to furnish the same, their liability would not be affected by the manner in which plaintiff kept the account on his books, so that keeping it in the name of H., and subsequently changing it to the name of defendants, would bear only on the disputed question whether in fact the credit was extended to defendants.

3 SALES. Plaintiff, directed by defendants to supply gasoline for car of H. during their construction work, held not required to see that H. did not use car for other purposes.

Plaintiff, directed by defendants to supply the car of H. with oil and gasoline during the progress of their construction, which H. was to supervise, was not required to see that H. did not, during such period, use the car with such supplies for other purposes also.

HON. THOS. E. PEGRAM, Judge.

APPEAL from circuit court of Lafayette county, HON. THOS. E. PEGRAM, Judge.

Action by T. F. Yates against Houston & Murray. Verdict was directed for defendants, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Harry M. Bryan, for the appellant.

The court erred in granting the peremptory instruction for the defendants. Appellant in this case claims that the contract for furnishing materials, etc., for the resident engineer's car was an original undertaking with the appellees and, therefore, plea of appellees invoking the statute of frauds could not be well taken. We earnestly contend that this record shows on the part of the plaintiff not an assumption by appellees to answer for the debt, default, or miscarriage of another, but an original undertaking on their part to pay for materials, etc., delivered to Heddleston on their account. The plaintiff contends that there was a general agreement between him and appellees whereby they entered into contractual relations and this is corroborated by the testimony of Mr. Murray, one of the appellees, who identified the contractors' contract with the road district in which they agreed to furnish a conveyance to the resident engineer.

On the other hand, both appellees vigorously contended that there were contractual relations existing between them and appellant. Even with this conflict in the record the court granted a peremptory instruction for appellees. It is our contention that it was a question for the jury under the settled law of this state. Delta Lumber Co. v. Wall et ux., 119 Miss. 350, 80 So. 782.

The way the account in the case at bar was carried on the book was not the material thing. It was but a circumstance which the court and jury could take into consideration in determining whether or not the contract for the materials here sued on was between appellant and appellees or between appellant and the engineer.

It is hardly necessary for us to cite authorities to the effect that where credit is extended and goods are purchased on account of one person by his agent, the person ultimately receiving the benefit of the credit is bound and the contract need not be in writing for it is an original undertaking. See Hutchinson v. Gaston, 91 So. 193; Morgan v. King, 91. So. 30.

It seems too clear for argument that this was a case for the jury under the above authorities. The question of account and their entries being explained by plaintiff and this court having held that such entries are but circumstances not absolutely conclusive, and having held further that where a question is raised as to whether a contract is original or collateral, the court grievously erred in taking the case from the jury.

J. W. T. Falkner, for the appellees.

The admissions of appellant that he started furnishing the supplies herein sued for to David Heddleston, that they were charged to David Heddleston on the book of original entry, and then transferred to a then existing personal account of David Heddleston, which at that time showed a balance of one hundred forty-eight dollars and thirty-four cents, and upon which ledger sheets the names of appellees did not appear until after the account was closed in September, throws the case squarely within the statute of frauds, it being an effort to hold the appellees upon a verbal promise to answer for the debt of another person, and the plea invoking that statute is well taken. Section 3119, Hemingway's Code,

The case of Delta Lumber Co. v. Wall et ux., 119 Miss. 350, cited fly counsel for appellant has no application here, it being a suit on petition for mechanic's lien, wherein the court held that when building materials were furnished and used in the construction of a building the way the account was carried, whether in the name of the contractor or the owner, was immaterial in establishing a lien on the property. Neither does Lee v. Newman, 55 Miss. 365, cited by counsel, state the rule to control in the case here.

It seems clear, both from the testimony of appellant himself and from the charges entered upon his books, that credit for some part of the goods in this case was extended to Heddleston personally, because appellant admitted that, after Heddleston became engineer for the Beat Three District, he continued to charge goods purchased by him to the same old account, carrying the old balance forward with the new; that when the account began to grow rather large, he then for the first time took the matter up with the appellees. Any agreement entered into at that late state of the account, with no proof as to the amount then charged on the account, certainly cannot be considered an original undertaking of the appellees for the entire amount, covering items delivered to Heddleston both before and after the first discussion of the matter between appellant and appellees. There is no conflict as to whom credit was extended in this case; hence, there was no question to submit to a jury.

OPINION

ANDERSON, J.

Appellant T. F. Yates,...