McRae v. Hooker ( 1925 )

^* Headnotes 1. Appeal Error, 4 C.J., section 3267; 2. Sales, 35 Cyc., p. 571. The appellee instituted this suit against the appellant, seeking to recover the sum of one hundred forty-five dollars and eighty-five cents for certain cross-ties sold by him to the appellant, and from a judgment in his favor for one hundred twenty-six dollars and fifty-five cents this appeal was prosecuted.

This is the second time this cause has been before this court, and the testimony for the plaintiff in this record is substantially the same as that in the former record, and as set out in the former opinion, which is reported in 131 Miss. 899, 95 So. 744, and consequently we will not again set out the plaintiff's version of the contract. The judgment from which the former appeal was prosecuted was entered in pursuance of a peremptory instruction granted to the defendant at the conclusion of the plaintiff's evidence, and on appeal this court held that the contract testified to by plaintiff was governed by the laws of the state of Tennessee, and that under the statute of frauds of that state an oral contract for less than five hundred dollars was good; and that "if the plaintiff's evidence was true, he was entitled to recover, and that a peremptory instruction was error."

At the last trial of the case in the circuit court the plaintiff and his witness testified that C.C. McRae, a brother of appellant, came to plaintiff's store at Guys, Tenn., and told him he wanted him to buy softwood cross-ties for him, and place them on the right of way of the Mobile Ohio Railroad Company at Guys; that the plaintiff agreed to this and asked for the prices; and that McRae replied, "All right, I will give you a contract to buy for me, and the specifications," and that McRae thereupon handed him a paper containing specifications and prices of various kinds of ties, this price list being signed McRae Lumber Company, by C.C. McRae.

In the development of the defendant's theory of the case, the court below controlled the introduction of testimony upon the theory that this court had held in the former opinion that this price list constituted the contract between the parties, and during the argument of the cause to the jury, at the request of plaintiff's counsel, and over the objection of defendant's counsel, the court told the jury that this court had held that this price list was the contract and was a good contract.

This was a misconception of the former opinion of this court. It seems to us to be perfectly manifest that the court did not intend to hold, and did not hold, that the price list was the entire contract. If it had so held, the question of whether the contract was governed by the laws of the state of Tennessee or the state of Mississippi, and the applicability of the statute of frauds, would have been of no consequence, and from the discussion of these questions it seems clear that the court treated the contract as an oral one, and having reached that conclusion, and that the contract, if any, was not invalid by reason of the statute of frauds, it simply held that plaintiff's evidence was sufficient to require the submission of the cause to the jury.

The plaintiff and his only witness both testified positively that McRae expressed a willingness to purchase softwood ties only. The defendant's testimony developed the uncontroverted fact that the price list furnished the plaintiff, as well as the account sued on, covered both softwood and hardwood ties. The court refused to charge the jury that it could not find for the plaintiff for any ties except those that were of softwood, but granted an instruction to the effect that the jury should find for the plaintiff for the softwood ties only, provided they believed from the evidence there was a contract between plaintiff and defendant, and that such contract was for softwood ties only. We do not think there is any testimony in this record which would authorize the jury to find that there was any contract for the purchase of hardwood ties, and that the recovery, if any, should have been limited to the softwood ties sued for.

For the errors herein indicated, the judgment of the court below will be reversed, and the cause remanded.

Reversed and remanded.