Thos. McFarland Lumber Co. v. Selby

93 So. 434 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

Thomas W. Selby and others, constituting the firm of Selby & Woods, filed suit against the appellant, Thos. McFarland Lumber Company, a corporation, and Simrall & Grogan, a partnership composed of II. Simrall and H. Grogan, alleging that between the 1st of July, 1916, and the 1st of December, 1916, the plaintiffs, at the instance and request of Simrall & Grogan, cut, furnished, sold, and delivered to said Simrall & Grogan lumber at agreed price as set out in an exhibit to the declaration; that the said Simrall & Grogan agreed with plaintiffs to pay them the amount set forth in said itemized statement, and the total of the amount to plaintiffs by said firm was one thousand three hundred forty-six dollars and twenty-two' cents; that the said defendants paid nine hundred and thirty-five dollars on said account, and that there remains due four hundred eleven dollars and twenty-two cents; that the said Simrall & Grogan accepted the said lumber.

It is further alleged that the plaintiffs by their contract and service acquired a lien upon the said lumber for the balance due them, and that the Thos. McFarland Lumber Company was aware of the fact that said plaintiffs had not been paid for said dumber and service; that the said Sim-rall & Grogan hauled for and sold to the defendant Thos. McFarland Lumber Company lumber at a price the exact amount of which is unknown. Plaintiff’s further allege that they threatened to and were about to attach said lumber or to institute proceedings to enforce their said lien for the balance of the purchase price, and that the said Thos. McFarland Lumber Company promised and agreed to and Avith plaintiffs that, upon consideration of plaintiffs refraining from attachment proceedings to enforce their lien, the said Thos. McFarland Lumber Company would pay to'the plaintiffs the said four hundred and eleven dollars and twenty-two cents; that the said undertaking was an original undertaking to promote the interest of the said Thos. McFarland Lumber Company and to secure to them new and independent benefits, and thereby they became bound and obligated; that as to a part of the said four hundred and eleven dollars and twenty-two cents a novation took place, the said Thos. McFarland Lumber Company agreeing to pay the plaintiffs the sum of three hundred and sixty dollars, the same constituting the purchase price of said lumber and hauling due from the said McFarland Lumber Company to Simrall & Grogan, as to which three hundred and sixty dollars the said Thos. McFarland Lumber Company charged the defendants Simrall & Grogan on account, and that the said Simrall & Grogan assented thereto. It appears that one liehse was buying lumber for the Thos. McFarland Lumber Company in Mississippi, and that he, representing the McFarland Company, entered into a contract with Simrall & Grogan by which the lumber company advanced him certain money and contracted for certain lumber.' Simra.ll & Grogan employed Sell)y & Woods to haul certain timber and lumber for them, and also bought certain timber from the said Selby & Woods from which to manufacture lumber. Simrall & Grogan got behind with their creditors, and turned over to Selby & Woods a carload of lumber on their account. Certain creditors of Simrall & Grogan began an attachment proceeding, and Selby & Woods were fixing to attach certain lumber sawed by Simrall & Grogan which was to be sold-to Thos. McFarland Lumber Company and appears to be on the ground at the station, but had to be graded, measured, and loaded. In this situation Rehse agreed with Selby & Woods .that, if-they would not attach, but let the lumber go forward, the Thos. McFarland Lumber Com-. pany Avould pay three hundred and sixty dollars, which at said time all parties thought the Thos. McFarland Lumber Company would owe Simrall & Grogan. The lumber was shipped under this agreement, but on getting up a statement of the account it appeared that Simrall & Grogan would owe the Thos. McFarland Lumber Company, instead of having anything due them from said lumber company. -The lumber company thereupon refused to pay Selby & Woods. There Avas a judgment below in favor of Selby & Wood's, from which this appeal is prosecuted.

There are two main contentions made by the appellant. One that the promise made, by Eehse, being an oral contract, violated the statute of frauds, because it is claimed it is a promise to pay the debt of another; and, second, that Eehse had no authority to make any such, contract on behalf of the appellant. It is also insisted that Selby & Woods had no lien against the lumber involved because the proof does not shoAV that the lumber was manufactured from timber sold Simrall & Grogan by Selby & Woods, and it is insisted that Selby & Woods were not employees of Simrall & Grogan, and neither had a vendor’s lien nor an employee’s lien.

Eehse appears to have-been in general charge of the operations of the Thos. McFarland Lumber Company in this territory. He bought, graded, and measured lumber and loaded it on cars, and it was paid for as a rule direct from the Cairo office of the Thos. McFarland Lumber Company. In some cases he made contracts on behalf of the Thos. McFarland Lumber Company by which they advanced certain of their customers money with which to finance their operations, and he made a contract with Simrall & Grogan of this kind.

In reference to the statute of frauds Ave think this case is governed by the principle announced in Delta Lumber Co. v. Wall, 119 Miss. 350 et seq., 80 So. 782, and Lee v. Newman, 55 Miss. 365. The procuring of the plaintiffs to abandon their contemplated attachment and let the lumber be shipped to the appellant on the agreement of the appellant to pay their demand, Ave think, constitutes an independent contract to that extent. It is true that the con-ract, if carried out, would result in paying the debt Sim-rall & Grogan owed to Selby & Woods, but this fact did not make it a contract or agreement within the statute of frauds to answer for the debt of another.

In reference to Rehse’s authority, he seems to have had authority to buy and have shipped to the appellant lumber and to contract for the price to be paid for the lumber. The deal here made was within the scope of this authority. It Avas in effect buying the appellee’s claim against the lumber and to secure the lumber without delay and the avoidance of litigation. The lumber Avas shipped to the appellant, and it received it and had the benefit of this contract. It is true that the agent of the lumber company thought the lumber company owed Simrall & Grogan money, and that he contemplated paying this money to Selby & Woods instead of to Simrall & Grogan. His estimate and judgment of the amount the lumber Avould average which he was buying and had bought from.Simrall & Grogan Avould be higher than it actually graded, but according to the evidence in this case on the part of the plaintiff he did not stipulate that he Avould pay Selby & Woods such balance as the company might OAve them, but stipulated that he would pay them the amount of their claim against the lumber. Rehse testified that the company did not carry out his idea in paying Selby & Woods; that he contemplated paying them out of the proceeds of the car of lumber so shipped. In our vieAV it is not necessary to decide whether or not the lien actually, existed against the lumber, because, the plaintiff was claiming the lien and Avas about to institute proceedings Avith the vieAV of establishing it and Avas induced to abandon this proceeding- and surrender his right to do so, and this Avas the consideration for the promise to pay the recovery would be permitted whether there was an actual lien against the lumber or not. By his agreement he prevented the seizure and prevented the plaintiffs having an opportunity to establish his right, and after the receipt of the fruits of this agreement, it cannot be held that he can in this proceeding defeat liability by showing that there was in fact no lien. This is not a snit for a conversion of property subject to a lien by a party without agreement in reference thereto, but is a suit to enforce a contractual obligation independent in its nature upon sufficient legal consideration.

The judgment of the court below will therefore be affirmed.

Affirmed.