Spann v. Grant , 83 Miss. 19 ( 1903 )

Whittteld, O. J\,

delivered the opinion of the court.

This is an action by M. B. Grant against Major Spann, T. M. Spann, and Albert Oliver, jointly. The declaration in this case contains two counts. In the first count, the plaintiff sought to charge defendants, jointly, for the value of the lumber alleged to have been sold and delivered to them at their request. The second count contains two parts. In the first part, plaintiff seeks to enforce a mechanic’s lien for the lumber. In the second part of the second count, the plaintiff seeks to bind the amount alleged to be still in the hands of the owners — the two Spanns- — and due to the contractor, Albert Oliver, under section 2714 of the Code of 1892: The testimony in the case demonstrated the fact that the Spanns had overpaid the contractor some $400. At the conclusion of the evidence, this occurred, as shown by the record. Counsel for appellee said: “Bor the purpose of facilitating the trial of the ease, and in order to get through with it, it is agreed that the second count of the declaration will be withdrawn (that is, the part that I will inclose in brackets on the declaration), and the case will be submitted to the jury on instructions. By the Court: Let it stand upon the liability of Major Spann for his original undertaking. By counsel for appellee: That’s it; yes, sir.” The counsel for appellee urges in his brief that all that was meant to be withdrawn was what we have denominated the second part of the second count, but what we have just quoted from the record clearly shows that the cause was tried alone on the first count, as we have stated it; the only effort being to hold the three parties jointly on the general count in assumpsit for lumber sold and delivered. Mrs. T. M. Spann was the owner of the lot. Major Spann was her husband, and acted as her agent. Oliver was the contractor, and Mrs. Spann had nothing to do with the contract for the building of the house, or with the contract for the purchase of the lumber. Plaintiff does not pretend that she did. Major Spann made the contract in writing with Oliver, the contractor for the building of the house. The arrangement by which the payments were to be made was this: That Oliver should order the lumber, and it was paid for by ■checks drawn by Major Spann and indorsed by Oliver against the fund in the bank, $4,100. As the case went finally to the jury, the only issue presented was, who was primarily liable for the value of the lumber sued for. Very much testimony was taken on this point. The plaintiff did not withdraw the second count of the declaration until he discovered that Major Spann had overpaid the contractor, Oliver. A remarkable fact in the case is that the plaintiff himself testifies that Oliver owes-him nothing, and the court, instead of leaving Oliver’s liability to the jury, gave a peremptory instruction to find for Oliver. Oliver also made a motion for a new trial, but, for some unexplained reason, withdrew it. A careful consideration of the whole case makes'it perfectly plain that this was an effort to declare upon a joint contract, and to recover upon h several one. If Oliver was a primary debtor, Spann was not, and yet tbe liability is declared ,on as a joint one, tbe suit was conducted throughout as a joint one, and when tbe proof disclosed beyond controversy that it was several, the court, instead of instructing tbe jury, as it ought to have done, to find for the defendants, the Spanns, allowed the case to go against the Spanns alone, after having given a peremptory instruction for Oliver, one of the parties alleged to have been primarily and jointly liable. The casé of Kimbrough v. Ragsdale,, 69 Miss., 674, 13 South., 830, controls the case. The court should have given the peremptory instruction asked by the Spanns. The effort to hold the Spanns seems to have been clearly an afterthought born of the insolvency of Oliver and his abandonment of his contracts.

Reversed and remanded.