121 So. 820 | Miss. | 1929
The bill of complaint, as finally amended, sought to recover upon an oral contract of sale to the defendant, Singletary, of all of the cypress and poplar timber measuring twelve inches and up at the stump, standing, lying, and being on certain particularly described lands belonging to the appellee, at and for the price of five dollars per thousand feet. It is admitted in the answer of the defendant, Singletary, that he entered into an oral contract to purchase timber from the appellee, but he specifically denied the existence of the contract set forth in the bills of complaint, and averred that he entered into an oral contract with the appellee whereby he agreed to buy, and appellee agreed to sell, all of the timber, other than cypress and poplar, on certain lands belonging to him which measured fourteen inches and up at the top end of the log, and all cypress and poplar timber measuring twelve inches and up, for the price of three dollars per thousand feet to be paid for when such timber was cut and removed from said land.
The appellee offered testimony to establish the oral contract set forth in the bills of complaint, and, upon the conflicting testimony as to the contract between the parties, the court awarded a recovery on the oral contract as set forth in the bills of complaint for the amount *704 of timber found to have been cut on the land of the appellee.
On appeal, the appellant contends that the decree of the court below must be reversed for the reason that it is predicated upon an alleged verbal contract which is void under the statute of frauds (Hemingway's Code 1927, section 3325). In reply, the appellee contends, first, that the statute of frauds has no application to the contract here involved; and, second, that it cannot be here invoked for the reason that it was not set up in appellant's answer in the court below. We are of the opinion that both these contentions of the appellee are answered by the case of Metcalf v. Brandon,
"It is well settled that, ordinarily, the statute of frauds, if desired to be availed of, must in some way be set up by the defendant. Brown on Stat. Fr. (2 Ed.), section 508 et seq. But, while this is true, it is still impossible for the court to enforce a parol contract which is denied by the defendant. It is only where the defendant admits the contract, or at least fails to deny it, and also fails to set up the statute, that it can be enforced. If he admits it in writing, by pleadings over his signature, the terms of the statute are met, and the court will proceed to investigate and determine the further facts that he may set up in avoidance of it, as in other cases. So, also, where he fails to deny it, and instead of pleading *705 the statute, relies upon other facts in avoidance of his contract, the same result will follow. But if, admitting the contract, he sets up the statute, or if, denying the contract, he puts the plaintiff to his proof, he must in either case prevail: In the first case, because the statute is an all-sufficient defense, though the facts be admitted; in the second, because where the facts are denied, and the plaintiff is put to the proof, he must necessarily fail for want of proof which meets the requirements of the law. Even where there is a material variation in the contract as averred by the plaintiff and admitted by the defendant, there can be no recovery upon the admission, except upon an amended bill or declaration adopting the statement of the contract as admitted."
The last sentence of the above quotation from the Metcalf case is peculiarly applicable to, and appears to us to be decisive of, the case at bar. There is here a material variation in the contract as averred by the complainant and admitted by the defendant, and therefore there could be no recovery upon the contract except upon an amended bill adopting the statement of the contract as admitted. It is true that, as held in the cases of Walton v. Lowrey,
For the error herein indicated, the decree of the court below will be reversed and the cause remanded.
Reversed and remanded. *706
The appellee has filed a suggestion of error, in which it is contended that the timber, for the contract price of which the appellee seeks to recover, was cut and appropriated by the appellant, and the oral contract for the sale of the timber was fully executed, and consequently the statute of frauds does not apply and the appellee is therefore entitled to recover the contract price of the timber so cut and appropriated. It is the settled doctrine in this state that the mere failure to discharge mutual monetary obligations on a verbal contract otherwise completed does not render such contract unenforceable under the statute of frauds (Fronkling v. Berry,
In the former opinion we held that by reason of the application of the statute of frauds to the facts here involved, the decree of the court below allowing a recovery for the amount of timber actually cut and appropriated at the contract price of five dollars per thousand feet was erroneous; but after a reconsideration of the cause we have reached the conclusion that we erred in so holding. In the cases of Walton v. Lowrey,
By its decree the court below found that the appellant cut and removed from appellee's land one hundred fifty-four thousand four hundred forty-six feet of timber, for which a recovery was awarded at five dollars per thousand feet. The appellee testified repeatedly that the logs that were cut and hauled to certain ramps and there sold to the Porter-Morgan Lumber Company scaled one hundred eleven thousand eight hundred thirty-six feet, while other logs cut amounted to thirty-eight thousand six hundred thirty feet, making a total of one hundred fifty thousand four hundred sixty-six feet. It thus appears that the decree allowed recovery for three thousand nine hundred eighty feet in excess of the amount warranted by the evidence, which at five dollars per thousand feet, amounted to nineteen dollars and ninety cents. The suggestion of error will be sustained, and the judgment heretofore entered set aside, and the decree of the court below will be affirmed, on condition that the appellee will enter aremittitur of nineteen dollars and ninety cents; otherwise it will be reversed and remanded.
Affirmed, with remittitur. *709