Hooker v. McRae

95 So. 744 | Miss. | 1923

Ethridge, J.,

delivered the opinion of the court.

The appellant, who was plaintiff below, brought suit against the appellee for one hundred forty-five dollars and eighty-five cents for cross-ties purchased by the appellant for the appellee. This contract was made in the state of Tennessee, and it appears that C. C. McRae, son of the appellee, came to the store of the appellant and asked him to buy ties for their account. The appellant testified that he asked McRae what kind of ties he desired and McRae said, “I will give you a contract,” and wanted soft-wood ties, and he gave him a price list signed by C. C. McRae for the McRae Lumber Company, owned by the appellee; that appellant thereupon bought and caused to be delivered upon the Mobile & Ohio Railroad cross-ties of the several kinds mentioned in the account and notified the appellant that they were placed upon the railroad subject to his order; that no notice was taken of this fact by the appellee, and thac appellant then went to the appellee’s place of business in Corinth, Miss., and made a demand upon him for payment of his said account; that McRae said he was not buying any more ties, and that he told him he would have to take the ties which he had placed on the railroad for him because he had a contract for them; that McRae demanded to see the contract, and he showed him the statement signed by C. C. McRae giving the price of the different kinds of ties he purchased; that the appellee then said, “Well, you have me, and I will take the ties up as soon as I can get cars placed;” that he never heard anything more from McRae for some months thereafter, and he then declined to take up the ties and pay for them, whereupon he brought this suit. There was a judgment in the justice of the peace court for the plaintiff, from which the defendant appealed to the circuit court, where there was a peremptory instruction for the defendant, from which this appeal is prosecuted.

The contract is governed by the laws of the state of Tennessee, and under the laws of that state the statute of frauds (chapter 118, Public Acts of Tennessee 1919, section 4) does not apply to a contract for less than five hundred dollars; in other words, an oral contract in that state is good up to the amount of five hundred dollars. The plaintiff’s version of the contract made in the store is supported by a young lady working for the plaintiff, and he testifies that the defendant, after the ties were gotten out and placed upon the railroad, agreed to pay for them.

We think, if the plaintiff’s evidence is true, that he was entitled to recover, and that a peremptory instruction was error.

The judgment will be reversed, and the cause remanded.

Reversed and remanded.