105 So. 2d 485 | Miss. | 1958
The appellee Malick Joseph contracted with Tommy O’Bannon, a plumbing contractor in Vicksburg, Mississippi, for the installation of certain pipes and plumbing fixtures in an apartment building belonging to the appel
The proof disclosed that while the proposed contract was dated June 10, 1955, and was signed by both O’Ban-non and Joseph on that date, the same in reality was signed by O’Bannon on that date, returned to the Southern Pipe & Supply Company, and was later mailed by the latter from its Jackson or Meridian office and was in turn mailed by the appellant Southern Pipe & Supply Co., Inc. to the appellee Malick Joseph at Vicksburg and was signed by him two or three days later.
The proof further discloses that on June 11, 1955, the appellee Joseph paid to O’Bannon the sum of $1,466 as the first payment for the work done and materials supplied to the apartment building, and that he made this payment to O’Bannon before he knew that O’Bannon was obtaining the pipes and other plumbing fixtures for this job from the appellant Southern Pipe & Supply Co., Inc. The plumbing contractor O’Bannon was shown to be an
The testimony is conflicting between O’Bannon and Mr. it. A. Newman, the warehouse superintendent of the Southern Pipe & Supply Co., Inc., on the question of whether or not Newman agreed on behalf of the appellant to accept the personal check of O’Bannon for only $500 and be permitted to use the check given by Joseph in favor of O’Bannon for the sum of $1,466 in order for O’Bannon to meet his current payroll. The question was therefore presented to the jury on this conflicting testimony of O’Bannon and Newman as to whether or not Newman, on behalf of the appellant, waived its right to the entire proceeds of the $1,466 check when he agreed to accept the personal check of O’Bannon for $500, as aforesaid.
Thereafter, the appellee Joseph made a second payment of $1,466, representing the second one-third of the price for the work done and materials supplied by O’Bannon on the job, and later paid the further sum of $1,200 which Joseph claimed represented the full payment for the work and materials actually furnished, due to the substitution of similar and cheaper kitchen sinks used in the apartment building, and which latter check was cashed.
The appellant was in a position to have protected itself by insisting upon being paid the full proceeds of the first check of $1,466, but agreed with O ’Bannon to accept the latter’s personal check for $500 in lieu thereof. The second check was dated July 28, 1955, payable to O’Ban-non and Southern Pipe & Supply Company jointly, and it was endorsed by O ’Bannon and delivered to Southern Pipe & Supply Company. It was accepted by that company and deposited to its account. In the lower lefthancl corner of the check there appears the words: ‘ ‘ Second third of contract,” instead of second payment on contract. It is undisputed that the appellant received the
Affirmed.