Brownlee Lumber Co. v. Gandy

87 So. 470 | Miss. | 1921

Sam C. Cook, P. J.,

delivered the opinion of the court.

The declaration charges that the plaintiff sold and delivered to the defendant lumber and logs and the defendant accepted the same amounting in value to six hundred fifty-five dollars, that the defendant was entitled to a credit of two hundred fifty-four dollars and eighty cents, and demands judgment for the balance four hundred four dollars and fourteen cents. Defendant filed two pleas — the first denying that it owed plaintiff the sum sued for or any part thereof. The second plea averred that the defendant paid all the sums due by defendant to the plaintiff. No replication was filed, but issue was taken in short.

The evidence in the case disclosed that the plaintiff had cut certain timber belohging to J. W. Brownlee and converted a part of same inti) lumber and delivered the same to J. W. Brownlee. The evidence fails to support the averments of the declaration. As we read the evidence, the plaintiff did not testify that he contracted with the Brownlee Lumber Company, a corporation. It seems that there was at one time a corporation known as'the Brown-lee Lumber Company, and J. W. Brownlee was the president of the corporation. It also appears that the corporation had gone out of business before the transactions in this case. It ivas necessary for the plaintiff to prove that the corporation made the contract sued upon.

The plaintiff was a frank witness, and would not say that he contracted with the corporation, or that he understood that he was dealing ivith the corporation. We are of the opinion that the plaintiff did not prove his case; indeed, it seems reasonably clear that the plaintiff did not at any time understand that he was dealing with the corporation but understood that he was dealing with J. W. Brownlee and was looking to him for the payment of the account. '

Reversed and remanded.