Miller v. Fisher, 77 So. 151

Miller v. Fisher

77 So. 151 | Miss. | 1917

Holden J.,

delivered the opinion of the court.

*355The appellee, Chas. A. Fisher, sued appellant, T. J. Miller, and obtained judgment for the sum of seventy-nine dollars alleged to be due for services performed by Fisher in repairing a motor boat belonging to Miller. Appellant Miller denied liability on the ground that he made no contract for the repairs, and that at the time the contract was made and the work done the boat was in the possession of a third party, Dan Sherman, who was using the boat for his individual benefit, having full use and control of it, and was to keep it in repair at his own expense; and that the contract for repairs made by Sherman with appellee, Fisher, was not authorized nor ratified by appellant, but that Sherman made the contract in his own behalf and expressly obligated himself to pay for the repairs. The contention of appellee, Fisher, appears to be that when the contract for repairs was made Dan Sherman was acting as agent of appellant, or that appellant became liable for the debt by ratification.

It apnears from the testimonv in this case that the appellee, Fisher, who was plaintiff in the lower court, had no contract, either express or implied, with appellant Miller for the repair of the boat. Appellee, Fisher, testified that Sherman contracted with him to repair the boat, and that Sherman was to pay for it, but that he did not look to Sherman for payment as he was under the impression that the boat or its owner would be liable for the debt due for the repairs. He does not claim that Sherman represented to him that he was acting as agent for appellant, Miller, owner of the boat, in having the repair work done. On the other hand, Sherman testified that he (Sherman) made the contract for repairs on his own account and that he was liable to appellee Fisher for the amount contracted for the repair work. It seems that the appellee, Fisher, was laboring under an erroneous impression as to the law, in that, as he testified:

*356“He (Sherman) told me it was Mr.' Miller’s boat, and I relied on the fact that the boat was good for it; and that was the reason I went ahead with it.”

Evidently Mr. Fisher thought that he could hold the boat or the owner of it for the amount due for the repairs without first having some sort of contract or agreement with the owner or his agent, either express or implied, which he did not have in this case according to the undisputed testimony in the record. This was a simple suit for a debt, and was not an action to enforce a mechanic’s lien against the boat under the statute. Sherman testified that he was operating the boat for himself and that he was not acting as agent or employee of Miller, and that he did not represent to Fisher that he was in any way an agent of Miller, but notified Fisher at the beginning that he was contracting for himself, and he would pay for the repairs to be made on the boat. And upon this contract between appellee Fisher and Sherman, Fisher proceeded to make the repairs. This testimony of Sherman’s is undisputed.

It further appears from the testimony in the record that, after the repairs were made upon the boat and it was tried, out and accepted by Sherman, the appellant, Miller, mailed to appellee, Fisher, a check for one hundred and twenty-five dollars, and said in the letter:

“Inclosed please find check for one hundred and twenty-five dollars for payment for work done on engine. Hoping that same will reach you promptly, I beg to remain,

“Tours truly,

T. J. Miller.”

It is shown without contradiction that this cheek was sent at the request of Dan Sherman and was an amount advanced by Miller to Sherman by agreement to pay for the repairs on the boat. Dan Sherman had already paid twenty-five dollars to appellee, Fisher, as part payment on the work shortly after the contract was made between ' Sherman and Fisher. Sherman also claims that Fisher *357is due nothing now, as the one hundred and fifty dollars paid is all that was dpe under the contract. But this is not material to the case before us now.

From the undisputed testimony in this record it seems clear to us that the appellee, Fisher, has no cause of action against the appellant, Miller. Miller did not enter into any express contract or agreement with Fisher to repair the boat, nor did he impliedly agree to pay for such repairs. There is no testimony whatever in the record showing that Sherman was acting as the agent of Miller in having the repairs done; but, on the contrary, it appears conclusively that Sherman was not acting as the agent of Miller, and he so informed appellee, Fisher, at the time the contract was entered into between them. Sherman himself had paid twenty-five dollars to Fisher on the contract and had obligated himself to pay the balance when the work was finished. The fact that appellant Miller paid to appellee, Fisher, one hundred and twenty-five dollars for work done on the boat can in no sense be construed-as a ratification, or an assumption or implied agreement to pay the balance claimed in this suit. It is undisputed that this one hundred and twenty-five dollar payment made by Miller was an advancement in behalf of Sherman, and was paid by Miller at the instance and request of Sherman. In view of these undisputed facts in the record, we are bound to hold that there is no liability on the part of appellant, Miller, for the balance due for repairs on the boat. Before the owner of personal property can be held liable in debt for repairs done upon it, there must be some contract existing between the owner and the person making the repairs, which contract, of course, may arise by agreement either express or implied, or by some act or agency of the parties creating an obligation between the parties concerning the matter involved; but no contract appears to have been made in this case. The judgment of the lower court is reversed, and judgment entered here for appellant.

Reversed and judgment here.