49 So. 116 | Miss. | 1908
delivered the opinion of the court..
Appellant, a dealer in builders’ supplies, filed a petition in the circuit court of Warren county against the Jaffray Construction Company and one Dr.'J. B. Askew, Jr., seeking to enforce a materialman’s lien upon a building constructed for Askew by John TL Jaffray, a contractor doing business under the style of the J affray Construction Company. From a peremptory instruction in favor of Askew, the supply company appeals.
The effect of the judgment of the circuit court was to release the building from any lien. Judgment by default was taken against Jaffray; he having made no defense to the action. The case tried in the circuit court seems to have turned entirely upon the question whether a certain letter written by appellant’s secretary and manager to appellee Askew was sufficient notice under section 3074-, of the Code of 1906, to bind the hands of Askew and in favor of appellant any amount which Askew at that time owed to the contractor. We deem it unnecessary to consider here the question of what amount was really due, at the time of the alleged notice, or whether any amount that might subsequently become due could be affected by the notice. Nor do we deem it essential to the decision of the case, as we view it, to consider the contention that the sum named in the alleged notice was subsequently paid. We may assume, for the purposes of this decision, that Askew owed J affray, at the time the letter of October 15 was written, more than the sum of $84:2; that being the amount mentioned in the letter. We purpose to consider only the effect of the notice. Many objections are
The letter recited: “As far as the millwork bill of $842 is concerned, the balance of this material was delivered yesterday, and as we act simply in the capacity of agents for the shippers, Messrs. John A. Gauger & Co., of Chicago, 111., we beg to advise that the amount of this bill, $842, will be due from this contract, and you will govern yourself accordingly.” It should be remembered that, in this phase of this case, Askew had no contractual relations whatever with appellant, and appellant could secure a lien or subject Askew to personal liability only by giving notice under the statute. His case must therefore stand or fall upon the notice. Now it is evident that the notice does not inform Askew that anything whatsoever is due from Jaffray to appellant. On the contrary, there is a distinct and unequivocal declaration that the debt is due, not to appellant, but to appellant’s principal, Gauger & Co. Can it be said that, when Askew was notified that Jaffray owed Gauger & Co. certain moneys for materials, a lien thereby arises in favor of appellant, an altogether distinct and separate concern ? The lien is what is here sought to be enforced, and this lien arises only from the fact of written notice, and that solely by virtue of the statute. In order to avail one’s self of the provisions of the statute, one must bring himself within its terms, either literally or by fair intendment; and surely the statute never meant that one individual could secure a lien because another had given a notice which was effectual as to the person giving notice. It is said, however, that the notice was sufficient in favor of Gauger & Co., for whom appellant claimed to be acting as agent, and that appellant, having paid Gauger in full, is now subrogated to whatever rights were by the notice secured by Gauger & Co. But the trouble with this contention is that as a matter of fact Jaffray never owed Gauger & Co. anything, and consequently Gauger & Co. never at any time had any rights to which appellant
It is here argued that the peremptory instruction was improper upon another-distinct and independent ground. It is said that the secretary and manager of the appellant company testified to facts Avliich tended to show that appellant and Dr. Askew had entered into an independent contract in regard to the millwork, by which Askew bound himself directly to pay appellant the amount sued for, and that therefore appellant came into such contractual relations with the owner that a lien arose by virtue of a sale of materials direct to the owner; that in this aspect of the case the notice ivas immaterial, and the suit was maintainable regardless of such notice. There is force in the contention, and it might prevail, if the course of the trial in the circuit court permitted that argument to be made in this court. But an examination of the petition clearly shows that no such issue was submitted to the circuit court. The suit was manifestly one to enforce a lien secured by notice. This view as to the distinct liability of Askew is entirely inconsistent with any liability by Jaffray. Askew and Jaffray cannot be jointly liable. If Jaffray is primarily liable, and Askew secondarily so, as a surety or guarantor, then the undertaking of Askew, not being in writing, is within the statute of frauds. So that appellant’s only hope is to hold Askew alone liable for this particular bill for millwork, and this necessarily involves the release of Jaffray. And yet there is suit and personal judgment against Jaffray, there is an express averment that Jaffray owed the $842, there is a recital as to the notice discussed in a previous part of this opinion, and a prayer that the debt be established as a lien from the date of the notice. There can be no doubt that the whole proceeding was an effort to enforce a licit obtained by notice. AYe reiterate what has so often been said by this court, that parties must in this court abide by tlie issues made in the lower court by the pleadings and proof.
Affirmed.
