Edward Thompson Co. v. Foy

76 So. 675 | Miss. | 1917

Holden, J.,

delivered the opinion of the court.

This in an appeal from the circuit court of Newton county, where the appellant, Edward Thompson Company, sued the appellee, M. P. Foy, attorney, for two hundred and seventy dollars, the purchase price of a set of law books. After the conclusion of the testimony introduced by the plaintiff, a peremptory instruction was granted to the appellee, Foy, from which action of the court this appeal is prosecuted here.

It appears that in November, 1907, the appellee, Foy, at Decatur, Miss.,, gave his written order to a salesman of the Thompson Company for a set of the second edition of the American & English Encyclopaedia of Law, for which he agreed to pay the sum of two hundred and seventy dollars. The order was promptly accepted, and the books shipped to appellee at Decatur and were duly received by bim. A few days thereafter the Thompson Company wrote appellee a letter and inclosed twenty-two notes, to be signed by him and returned, covering the amount of the purchase, according to the terms of the written order signed and delivered to the salesman; but appellee failed to sign and return these notes. Subsequently appellee wrote the Thompson Company that he had been absent from his office and sick, which had caused his delay concerning the notes for the books purchased. In this letter appellee requested, as a personal favor, that appellant change the notes so that they would fall due at a different time and for different amounts. Appellant, Thompson Company, refused to make the change requested at this time. On January 20, 1909, appellant again wrote appellee, requesting settlement for the books, and, in reply to this letter from' appellant to appellee, appellee on January 25, 1909, wrote a letter to appellant, Thompson Company, which was written on the stationery of the law firm of Foy & Banks, of which appellee was a member, in which letter the question of the terms of payment of the contract were discussed, and appellee wrote that:

“This is now the only difference between us. If you are ready to make the installments five dollars and ten dollars, as I understood the contract to be, I am ready to pay off the past-due installments and take care of future installments as they may become due.”

Both of the above letters were signed “M. P. Foy” with the typewriter. On February 3, 1909, appellant, Thompson Company, wrote appellee, accepting his offer of January 25, 1909, and making all installments five dollars and ten dollars, as mentioned in appellee’s letter. In accordance with this proposition, made by appellee, Foy, and accepted by appellant, Thompson Company, the Thompson Company forwarded the notes to appellee, to be executed and returned to appellant; but appellee failed to execute these notes, and there the matter rested until October, 1909, when appellant placed the claim in the-hands of an attorney for collection. This attorney did not make the collection, but held the claim in his hands until October, 1911. In the meantime the’ appellee wrote to appellant, in which letter he stated:

“You will please be quiet about the amount due the company until we get straight in the office again after a long absence. As soon as we are able, we will meet this.”

But appellee did nothing further. The claim was then turned over to other attorneys for collection, all of whom did nothing with it. Finally, on October 5, 1915, this suit was filed in the circuit court of Newton county. Appellee, Foy, appeared and filed a plea of general issue and two special pleas, setting up the statutes of limitation of three years and six years.

It is unnecessary for us to discuss or consider what took place between the parties to this controversy prior to February 3, 1909, the date of acceptance by appellant of the terms of the contract proposed in the letter of January 25, 1909, by appellee, Foy, to the appellant. This correspondence constituted a written contract, made, accepted, and entered into by both parties with reference to the purchase of the books here in. question. This being the written contract of that date, made and entered into by both parties, the statute of limitation of six years must be applied accordingly, and the amount of two hundred and fifteen dollars, which appears to be due by the appellee, Foy, to the appellant, Thompson Company, under this contract, within the six years prior to the date of filing of this suit, is not barred by the statute of limitations.

So far as the letter written by the appellee, Foy, being signed on the typewriter is in question, such letter is valid and binding on appellee, if he wrote it and signed it on the typewriter, or authorized it to be done. It does not appear conclusively in the record that he did not write and sign the letter, or did not authorize it to be done. Under the facts and circumstances, in connection with the whole transaction in this case, this letter, apparently written by appellee in answer to ap|pellant’s letter of January 20, 1909, is at least primafacie evidence of Ms having written or authorized it; and his dispute of this fact raises a question of fact to be submitted to a jury. He proposed and named the terms of the purchase in his letter, which terms were accepted by the appellant, Thompson Company, and Foy having received and retained the books, which he has not paid for, it was error of the lower court to grant a peremptory instruction in favor of appellee.

The judgment of the lower court is reversed, and the case remanded.

Reversed and remanded.