80 So. 782 | Miss. | 1919
delivered the opinion of the court.
The Delta .Lumber Company filed a petition for a mechanic’s lien upon a house erected for defendants, J. N. Wall and his wife, situated upon certain lands described in the petition, alleging that on the 18th day
The defendants filed an answer, and say that on or about the 1st day of December, 1916, they entered into a contract with Will Lacour to erect said building, furnish all materials of all kinds, and all labor, including .plumbing and hardware, painting, etc., for the sum of one thousand, four hundred forty' dollars, with the understanding that the building was to be completed in a good and workmanlike manner, and delivered to the defendants free from all liens and incumbrances by the first of March, 1917; that the amount was to be paid as the work progressed, with the understanding that no amount was to be paid by the defendants in excess of the estimate of the defendants of the work
One Sandifer was assistant manager of the lumber company, and testified for the complainants, and states that Lacour had asked the lumber company for an estimate on the material to be furnished, and that they had given him .an estimate and made an agreement with Lacour to furnish the lumber to erect said building, to be paid for in installments, but that, before any of the material was delivered under this contract, Mr. Wall came to the lumber company’s place of business and stated that he believed that Lacour was a crook, and that he (Wall) wanted to deal direct with the lumber company, and that he would pay the lumber company direct, and that they could pay Lacour; that Wall said he wanted to see the lumber company get its money, and that he would make payments to the lumber company as the work on the house progressed; that the amount was entered on the books of the lumber company under the heading, “Will Lacour, Wall Job;” that Mr. Wall paid some of the money for the material as the work progressed by giving his checks, and that
A. G-. Crook, manager of the Delta Lumber. Company, testifies: That Wall came to him about the middle of November and stated that he wanted to build a residence, and mentioned some houses recently built. That he wanted a house like one of the buildngs with some modifications, and asked the witness who built the house, and witness told him Lacour, and -Lacour submitted a plan to Wall. In a few days Mr. Wall came to the plant to look over the grades of lumber the estimate called for, and witnesss showed him different grades, and Wall stated he was pretty sure he would have the work done. That a few days before they began to haul lumber, Wall came down and said he heard that Lacour was crooked, and he did not want to have any dealings with him; that he wanted to have all dealings with the lumber company. That he explained to Wall that on those contracts the company wanted three payments, and that every time he would give a check he would take out one-third of the lumber bill and turn the balance over to Lacour, and that Wall said that would be all right, so the material was delivered to his wagon. That Wall came in person a good many times and saw the lumber put in wagons. That all of the lumber was checked out that was put on his wagons, and that he bought a good deal of additional material, which was charged from time to time. That the first payment or check was made to
Wall in his testimony denied the things testified to by these witnesses, and claimed that his contract with Lacour covered the entire construction, and that he had overpaid Lacour, and that no notice was served on him under the statute prior to such payment to Laconr.
At the conclusion of the evidence the circuit judge granted a peremptory instruction for the defendants Wall, and the lumber company appeals here.
The appellees contend that there was no justification in the evidence to sustain a materialman’s lien against the property, and that, considering the testimony of the complainants to be true, it amounts merely to a promise to pay the debt of another, and comes within the statute of frauds, and that no recovery can be had, and consequently that the trial judge properly instructed the jury to find for the defendants.
We think from an examination of the evidence for the complainant or plaintiff that, if it be conceded that these statements are true, there was an original contract between the lumber company and Wall for said material, and this contract of course does not have to be in writing to impress the building into which such material went with a materialman’s lien. It is immaterial that the lumber company had previously made an agreement with Lacour to furnish the lumber to him, because if they had done so they could have established a lien by serving notice under.the statute prior to the payment of the contract price. If com
The way the account was carried on the book is not the material thing that determines whether or not there was a contract. At most it is only a circumstance to be considered along with the other evidence upon the subject as to whether there was a contract between Wall and the lumber company, or whether the contract was really with Lacour. Even if we take Wall’s theory of the evidence of the complainant that what passed between Wall and the lumber company was a mere verbal agreement on the part of Wall to pay the debt incurred by Lacour for the material, still the statute of frauds would not prevent the action in this case. It is not a mere promise by Wall to pay Lacour’s debt. It is an agreement by Wall to pay the amount he owed Lacour for the contract to the lumber company, and seems to fall within the principle announced by this court in Lee v. Newman, 55 Miss'. 365. In the second syllabi of the case the following is laid down:
“Statute of Frauds — Agreement to Pay to Creditor of Promisee. — Where a vendee of land agrees to pay a part of the purchase money to a creditor of the vendor, the agreement is, not to pay the debt of another, but to pay his own debt to some person other than his own creditor. And the facts that the payment is to be made to a third person, that in paying his own debt he extinguishes that of another, and that the liability of that other continues the same after as before his undertaking, do not bring the agreement within the statute of frauds.”
Under Wall’s theory of the case, his promise, as testified to by the manager of ' the lumber company, was to pay his own debt to Lacour to the lumber company instead of to Lacour, to protect the lumber company against loss for material furnished to build the house of Wall. If no promise had been made by Wall
We think the court below was in error in granting the peremptory instruction, and the judgment is reversed, and the cause remanded.'
jReversed and remanded.