83 So. 2d 441 | Miss. | 1955
This is an appeal by Mrs. Sam J. Simmons, Sr., doing business under the name of City Lumber Company, of Grenada; Mississippi, and her general agent Fred Simmons, from a decree of the Chancery Court of Smith County in the amount of $11,281.97 in favor of Smith County Bank. There was also a decree in the same suit against S. A. Bradshaw from which no appeal has been taken.
The controversy arose out of the following facts: In the early part of 1953 City Lumber Company obtained a contract with General Services Administration, a government agency, to furnish in different quantities and at different points certain hardwood warehouse pallets. These pallets are used as platforms on which to stack various types of merchandise in naval warehouses. Those here involved were to be forty-eight inches square with legs forty-two inches in length; the platform was to be
Appellants got in touch with Bradshaw, who owned a woodworking plant at Taylorsville, Mississippi, and entered into an agreement with Bradshaw for the manufacture of 10,000 of these pallets. The agreement was made by Fred Simmons who it is conceded had full authority so to do as the general agent of and manager for appellant Mrs. Sam J. Simmons, Sr. At that time Simmons was in Taylorsville, and, before making the agreement, Bradshaw advised him that he would be compelled to have some financing if he took the contract. They went together to the office of Smith County Bank at Taylorsville and Simmons exhibited a financial statement of City Lumber Company, which he was representing. A tentative agreement was made with the cashier of the bank and later confirmed by both parties with the executive vice-president of the bank, to the effect that Bradshaw would begin the manufacture of the pallets and would ship them promptly by rail as directed by Simmons and as each car was shipped Bradshaw would make out an invoice to City Lumber Company and would assign such invoice to the bank, which would thereupon advance 80% of the amount of the invoice to Bradshaw and would send each assigned invoice to City Lumber Company. Simmons agreed that each invoice would be promptly paid upon receipt at Grenada and in no event would payment be withheld more than ten days. It was specifically understood between the bank and Simmons, and this is admitted by Simmons, that the bank would not wait until inspection was made by the government inspectors and payment made to Simmons thereon before receiving payment from Simmons of these assigned invoices. In fact, there is no dispute between the parties as to the terms of the agreement with the bank.
Appellants rely upon the general proposition that under their contract with Bradshaw they owed Brad
Appellants also contend that the decree of the lower court is in violation of the statute of frauds in that it holds appellants liable upon an oral promise to pay the debt of Bradshaw to the bank. The pleadings indicate that this is an after-thought on the part of appellants. They filed an answer to the original bill and made no mention of the statute of frauds. Later they filed an amended answer and still did not plead the statute of frauds. Later they filed a second amended answer and for the first time raised it. We do not think there is any merit in the point. Appellants’ promise
Affirmed and remanded.