42 So. 284 | Miss. | 1906
delivered the opinion of the court.
It is unnecessary to say anything in this case beyond this: That the evidence shows clearly that appellee never made any demand upon the appellant to have any oil whatever supplied for its use. When the case was here before, a declaration prepared with unusual care was very unwisely demurred to, and an appeal taken from the judgment sustaining the demurrer. When the case got back, it was tried, as it ought to have been tried in the first instance, on the merits, so as to have saved the costs and delay caused by two appeals and two trials; and it clearly appeared, as stated, on this trial, that the appellee never made any demand for the oil whatever. The appellant could not know when oil was needed, or in what quantities, except as informed by the appellee.
This is vital to the right of recovery, and the judgment -is reversed, and the suit dismissed.
