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Manning v. Lumber Co.

Supreme Court of Mississippi, In Banc
Mar 5, 1934
152 So. 885 (Miss. 1934)


No. 30890.

March 5, 1934.

MECHANICS' LIENS. Where debtor was interested in lumber company, and made agreement to sell lumber to creditor in payment of debt, lumber company, after delivering lumber without knowledge of agreement, held not entitled to mechanc's lien nor judgment against creditor for value of lumber.

Lumber company was not entitled to mechanic's lien nor judgment against creditor for value of lumber, in view of absence of contract, express or implied, between creditor and lumber company, notwithstanding lumber company had no knowledge of agreement between debtor and creditor that lumber was to be received in payment of debt.

ANDERSON and GRIFFITH, JJ., dissenting.

APPEAL from Circuit Court of Hinds County.

W.H. Cox, of Jackson, for appellant.

The court below erred in permitting the appellee to recover on a contract made with Cassity.

The appellant did not authorize Cassity to pledge his credit with the appellee and did not request the appellee to sell him any materials. The evidence plainly shows, or fails to show, that there was any express contract between the appellant and appellee under a verbal agreement between the parties, as charged in its petition. There could be no recover on quantum meruit if Cassity can be said to be an agent of the appellee, which both parties agree that he was not, still the appellee would be obliged to suffer the loss occasioned it by being misled by him in shipping these materials to the appellant, when appellant had a contract with Cassity whereby appellant would be benefited in purchasing said materials from him.

Felder v. Acme Mills, Inc., 112 Miss. 322, 73 So. 52; Parker v. Dantzler Foundry Machine Works, 118 Miss. 126, 79 So. 82.

It is elementary law that a party has a right to select and determine with whom he will contract and cannot have another person thrust upon him without his consent.

1 Elliott on Contracts, sec. 102; 2 Elliott on Contracts, sec. 1408; 35 Cyc. 60; Boulton v. Jones, 2 H. H. 564; Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Randolph Iron Co. v. Elliott, 34 N.J. Law 184; National Bank v. Leflore Grocery Co., 147 Miss. 43, 112 So. 700.

Cassity is now a bankrupt who has enjoyed the full benefits of his agreement with the appellant by receiving a credit on his obligation to the appellant. The appellant has fully paid Cassity by credit for the full amount of the invoice sued on, and it is our position that it did not lie within the power of the appellee by any course of dealing with Cassity to divest the appellant of his right to offset Cassity's obligation to him against said purchase from him.

Globe Realty Co. v. Hardy, 155 Miss. 12, 119 So. 192.

The only contract in evidence in this case was the order or unilateral contract with Cassity under date of January 6, 1931 (1932). We submit that this order was not subject to acceptance by the appellee, and that in the absence of notifying the appellant of its acceptance of said order and that it was looking to him for the payment for said materials, it would have no right to recover of the appellant for materials shipped on said order from Cassity.

A.L.I. on Contracts, sec. 54; 13 C.J., secs. 68, 69; A.L.I., p. 61; A.L.I., Contracts, secs. 22, 23, 28; Robinson Merc. Co. v. Thompson, 74 Miss. 847, 21 So. 791; A.L.I., Contracts, secs. 58, 59, 63.

Cassity's memorandum to the appellee tended to establish his agency for the appellant in making said purchase of the appellee, contrary to their actual agreement and was incompetent. The court erred in overruling appellant's objection to said testimony.

C. G.R.R. Co. v. Miss. Clinic, 153 Miss. 29.

It is elementary that the burden of proof in this case was on the appellee to show by a preponderance of all of the evidence in the case that Cassity was authorized to purchase these materials from the appellee for and on the credit of the appellant.

Cape County Savings Bank v. Gwin Lewis Grocery Co., 123 Miss. 443; Becker v. Hardy, 96 Miss. 301; Planters Lbr. Co. v. Sibley, 130 Miss. 26; Lee v. Dixie Mtr. Co., 155 Miss. 393; George v. Woodruff, 160 Miss. 13.

The fact that the appellee charged said materials to the appellant is of itself no evidence that credit was extended to him thereon, and not to Cassity, or that it was authorized by the appellant in any manner to have charged him therewith.

Benson v. Berry, 158 Miss. 237.

The court erred in rendering a general judgment for the appellee on its petition drawn in one count seeking to establish a lien on appellant's lot, when it expressly refused to fix a lien thereon.

Williams v. Warren, 134 Miss. 899; Federal Land Bank of New Orleans v. Thames Lbr. Co., 160 Miss. 335. Shaw Pilgrim, of Jackson, for appellee.

The evidence as a whole shows that appellee sold the lumber to appellant, charged to appellant on its books, shipped and delivered the lumber to appellant on his property, invoiced the same to him, and that appellant received the lumber knowing it was delivered by the appellee to him to the very spot designated by him, he even refusing to accept and sign the shipping or delivery tickets, but accepting and proceeding to use the lumber without making use of the information tendered him on delivery and while engaged in cutting and using said lumber received definite information to the effect that it was charged to him and then proceeding to use the balance of the materials with full knowledge and making no complaint until March 4th, some fourteen days after receipt of the invoice.

Appellant received the materials with knowledge that they were charged to him, the same as in the Wellford case, retained and used them, and then made his complaint. The only distinction being that the sale was not made to him by an accredited sales agent of appellee company. This distinction makes the case at bar stronger than the Wellford case. If appellant Manning wished to deal with Cassity he should have made known to appellee this fact and had appellee's approval of the agreement before receiving and using the materials.

Wellford Withers v. Arnold, 162 Miss. 786, 140 So. 220.

The lien holder may choose to follow up his lien even to the point of a special order for sale and sale of the property or he may abandon his lien at any stage of the proceeding and elect to stand on a general judgment. This being true there can be no difference between electing to waive his lien and merely accepting the order of the court limiting him to a general judgment.

Sharpe v. Spengler, 48 Miss. 360; Richardson v. Warwick, 7 H. 131; Weathersby v. Sinclair, 43 Miss. 189; Kirk v. Taliaferro, 8 S. M. 754.

Argued orally by W.H. Cox, for appellant.

The Bienville Lumber Company filed a petition in the circuit court of Hinds county to establish a materialmen's lien upon a building erected by J.O. Manning of materials furnished by the Bienville Lumber Company.

It appears that one Cassity made an agreement with the appellant, J.O. Manning, by which Cassity was to sell a bill of lumber to the appellant in payment of a debt owing to Manning by Cassity; the latter being a stockholder in the Bienville Lumber Company. The bill was made out by Cassity with this notation at the bottom thereof:

"Mr Mitchell (he being manager of the Bienville Lumber Company).

"Mr. Manning wants you to quote him F.O.B. Jackson, the above bill of lumber as soon as possible.

"Yours M.M.C."

Mr. Mitchell knew Cassity's handwriting, and made Manning a price on the bill of lumber, mailing it to Cassity and delivering the lumber to Manning who used it in the erection of a house.

It would seem that the Bienville Lumber Company did not know of the agreement between Cassity and Manning, and that Manning did not know, until after he had used the lumber in the erection of his house, that Cassity had not paid for the lumber or that it had been billed to him. Manning refused to pay the Bienville Lumber Company for the lumber, and this proceeding was instituted. On the trial, the circuit judge denied the lien prayed for, but gave judgment against Manning for the amount sued for, from which this appeal is prosecuted.

As shown by the record, Manning did not intend to have the lumber billed to him, as he was buying it from Cassity, and Cassity was not Manning's agent in procuring the lumber, and there was no agreement of any kind that the lumber was to be purchased, by Manning, from the Bienville Lumber Company. Cassity seems to have misled both parties in this transaction; and there was no meeting of minds between Manning and the Bienville Lumber Company, since Manning had not bought the lumber from said company.

Under these circumstances, Cassity would be liable to the Bienville Lumber Company for the lumber, but Manning would not, since Cassity caused the lumber to be delivered to Manning, and, while Cassity may not have been authorized by the Bienville Lumber Company to have this lumber charged to himself, still he would be liable to the Bienville Lumber Company because of his failure to disclose the true facts to said company.

There having been no contract between Manning and the Bienville Lumber Company, either express or implied, there could be neither a lien established on the building, nor a judgment against Manning.

The judgment of the court below will therefore be reversed, and the cause dismissed.

Reversed, and cause dismissed.

There is no dispute about the facts in this case. Manning and Cassity both lived in Jackson. The Bienville Lumber Company was located at Forest. Cassity was a stockholder in the lumber company, but not its agent. He had no other connection with it than his ownership of stock. Manning wanted to build a house in Jackson. Cassity was indebted to Manning in a sufficient amount to pay for the lumber Manning wanted for the purpose. Manning requested Cassity to buy the lumber for him from the Bienville Lumber Company and pay for it himself, and he (Manning) would credit Cassity with the amount on what Cassity was due him. Cassity agreed to this. Thereupon Manning made out a bill of lumber he wanted and turned it over to Cassity. Cassity sent it by mail to the Bienville Lumber Company, and stated in a note at the bottom of the bill that Manning wanted the lumber company to quote prices to him as soon as possible, f.o.b. Jackson. The lumber company did as requested, sending the quotation to Cassity, who delivered it to Manning. The lumber company sent the lumber on trucks to Jackson and delivered it on the ground where Manning was building his house, and Maning received it.

After the lumber was used in building the house, Manning learned for the first time that the Bienville Lumber Company was selling the lumber to him and not to Cassity, and it was then that the lumber company learned for the first time that the agreement between Cassity and Manning was that Cassity was to pay for the lumber. Cassity never paid for the lumber.

There is no controversy as to the value of the lumber. The lumber, as shown, went into Manning's house, and he got the benefit of it. The lumber is therefore gone from the lumber company. The lumber company is out its value, while Manning is out nothing and has the lumber. There is nothing in the record to show that Manning cannot collect his indebtedness against Cassity. Cassity did not testify in the case.

These conditions were brought about without any fault of either the lumber company or Manning. It was the fault of Cassity. Now who should suffer for Cassity's fault? I think Manning should, for two very good reasons: First, he received the lumber and got the benefit of its value. The lumber company parted with the lumber and its value and received nothing in return. Second, who put it in Cassity's power to bring about this result? The answer is Manning, and Manning alone. If Cassity was the agent of either party, it was Manning, not the lumber company, because Manning procured quotation of prices from the lumber company through Cassity; the lumber company did not select Cassity for the purpose. Cassity had no contract with the lumber company. He did not purchase the lumber from the lumber company, nor did he agree with the lumber company to pay for it. The lumber company did not know him in the transaction, except as a mere conduit for the quotation of prices to Manning. The effect of the majority opinion is to erect out of the transaction a contract between Cassity and the lumber company, when no such contract existed. Nor can the principle be applied here that, where a contract is made for the benefit of a third party, the third party may recover upon it although not a party to it, for this contract was made not for the benefit of the Bienville Lumber Company, put for the benefit of Manning.

It appears to me that under the principles of both legal and moral justice Manning ought to be made to pay the lumber company for what he received.

Griffith, J., joins in this dissent.

Summaries of

Manning v. Lumber Co.

Supreme Court of Mississippi, In Banc
Mar 5, 1934
152 So. 885 (Miss. 1934)
Case details for

Manning v. Lumber Co.

Case Details


Court:Supreme Court of Mississippi, In Banc

Date published: Mar 5, 1934


152 So. 885 (Miss. 1934)
152 So. 885

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