Jake Strickland Lumber Co. v. Rheinhart , 115 Miss. 749 ( 1917 )

Ethridge, J.,

delivered the opinion of the court.

■ C. A. Carroll had a residence erected in Clarksdale, Miss., under a contract with one Ward for a fixed price. Ward secured material from various parties for use in erecting said building. Before the building was completed Ward executed an assignment to the Jake Strickland Lumber Company for one thousand dollars, to be paid out of the proceeds from Carroll for the building. This assignment was not brought to the attention of Carroll, nor accepted by Carroll, but was presented to the architect superintending the construction of the building, and the architect would only allow five hundred dollars of said assignment, stating that he did not know how much it would take to complete the building.

S. Rheinhart filed an account in the court of a justice of the peace for one hundred and twelve dollars and fifty cents for material furnished in the building, and made Carroll and wife, the Bank of Clarksdale, the Clarksdale Building & Loan Association, Jake Strickland Lumber Company, and H. L. Ward parties defendant. In this petition in the justice’s court he alleged that the Jake Strickland Lumber Company and H. L. Ward contracted- with Carroll and wife for said building, and that they had constructed the building as contracted, and that the material furnished by Rheinhart went into said building. A like suit was filed by W. R. Ellis for fifty-six dollars and six cents, and the same parties were made defendants as in the other suit. Carroll and wife filed their answer, stating that two hundred and ninety-seven dollars remained due and unpaid on said work and no more, and paid this amount into court. H. L. Ward, the contractor, filed an answer, admitting the indebtedness claimed by Rheinhart and Ellis, and also suggesting that J. R. Shelton Hardware Company, Joe Watters, and one Pinch also had claims for materials furnished in said "building, but in his answer he contended that 'the Jake Strickland Lumber Company, who filed a claim for seven hundred and sixty-five dollars, was not entitled to any claim against said building, and claimed that he, Ward, and the Jake Strickland Lumber Company were partners in said contract, and that said bid and contract were made for and in the interest of the Jake Strickland Lumber Company. The Jake Strickland Lumber Company filed an answer denying the partnership and claiming seven hundred and sixty-five dollars for material and the balance of five hundred dollars on a one thousand dollar order which he claims was given prior to any service of notice on the owner and before suit. Ellis gave notice to the contractor of his claim on the 2d day of November, 1914, and Rheinhart gave notice on the 30th day of October, 1914. The cause was tried in the justice’s court and the justice gave judgment in favor of Rheinhart and Ellis as preferred claims, and judgments for the other claimants brought in by intervention, and denied the claim of the Jake Strickland Lumber Company. From these judgments the Jake Strickland Lumber Company appealed to the circuit court, and Ellis and Rheinhart also appealed. In the circuit court H. L. Ward was offered as a witness for the plaintiffs Rheinhart and Ellis, and was asked the question, “In what way did you deal with the Jake Strickland Lumber Company?” and answered, “As partner and manager.” The question and answer were objected to, and the objection was sustained by the court. This witness was also asked for whose benefit the, contract with Carroll was made. This question was also objected to, and the objection was sustained. Ward also testified that the materials furnished by the Strickland Lumber Company in the building were furnished prior to the dissolution of their partnership arrangement. This evidence was objected to by the Strickland Lumber Company, and the objection sustained.

The court instructed the jury for 'the plaintiff that if the jury believed from the evidence the Jake Strickland Lumber Company was paid for all the materials and labor furnished by it in the construction of the Carroll job, they would find against the Jake Strickland'Lumber Company.

The Jake Strickland Lumber Company requested an instruction that if the jury believed from the evidence that the Jake Strickland Lumber Company furnished labor and materials in the erection of the Carroll residence in excess of the amount alleged to be due on the order for one thousand dollars given by Ward to the Strickland Lumber Company, they will find for the Jake Strickland Lumber Company in such amount as the evidence shows to be due the Jake Strickland Lumber' Company for all labor or materials, or both, furnished in the erection of the Carroll residence, and that the form of the jury’s verdict in such case would be:

“We, the jury, find that the Jake Strickland Lumber Company furnished labor and -materials used in the erection of the Carroll residence in excess of the amount of five hundred dollars alleged to he due on the order for one thousand dollars given by Ward to the Jake Strickland Lumber Company to the amount of-dollars” filling in the amount as the evidence may show that the Jake Strickland Lumber Company furnished in excess of five hundred dollars, which the court refused to give.

The appellant also requested an instruction to find for the Jake Strickland Lumber Company whatever amount, if any, they may believe is due and owing said company for any and all material furnished, if any, in excess of the amount in controversy evidenced by draft or order by Ward on the contractor, which was also refused by the court.

The court granted the appellant an instruction that if the jury believed the Jake Strickland Lumber Company was entitled to recover the alleged balance of five hundred dollars on the order in evidence then their verdict will be:

“We, the jury, find for the Jake Strickland Lumber Company in the amount of five hundred dollars ’ ’ and if they further believe. that this amount is for labor and material used in the Carroll residence, the form of their verdict will be:

“We, the jury, find for the Jake Strickland Lumber Company in the sum of five hundred dollars, and that said sum is for labor and material furnished and used in the Carroll residence.”

The court further instructed for the appellant that the burden was on Ward to establish by a preponderance of the evidence that the payment of five hundred dollars made on the order for one thousand dollars given by Ward to the Jake Strickland Lumber Company was accepted by the Jake Strickland Lumber Company in full payment of the whole amount of said order, and that unless the said Ward met this burden, by a preponderance of the evidence, to the satisfaction of the jury, then they would find for the Jake Strickland Lumber Company, and if they further believed from the evidence that such amount is due the Jake Strickland Lumber Company for materials or labor used in the erection of the Carroll residence, then they will certify in their verdict that the said amount is due the Jake Strickland Lumber Company for labor and materials furnished and used in the erection of the Carroll residence.

The jury returned a verdict as instructed as to Bheinhart and Ellis, and returned the following verdict for Strickland:

“We, the jury, find for the Jake Strickland Lumber Company the amount of five hundred dollars.”

Upon these verdicts the court below entered judgment against Ward in favor of each of the said parties for the amount found by the jury, and then apportioned the moneys paid into court by Carroll by allowing Bheinhart and Ellis their claims in full and prorating the balance of the fund between the Jake Strickland Lumber Company and the other defendants below on the basis of their claims. From this judgment the Jake Strickland Lumber Company appeals here, and insists that it should have been given a judgment for the full amount paid into court, and that the claims of the other parties should be subordinated to its claim on the assignment given by Ward to the Jake Strickland Lumber Company for five hundred dollars, the funds paid into court being less than five hundred dollars.

We are of the opinion that, unless there was a partnership between the Jake Strickland Lumber Company and Ward on this contract, the judgment should have been for the appellant, under the holding of the cases of Spengler v. Lumber Company, 94 Miss. 780, 48 So. 966, 19 Ann. Cas. 426, and Herrin v. Warren & Mobley, 61 Miss. 509. We think the court committed error in excluding the evidence of a partnership between Ward and the appellant, and, if there was a partnership, that the Jake Strickland Lumber Company would be subordinated to all of the other claims for material and labor. The question of partnership should have been submitted to the jury, under proper instructions, and if there was a partnership with reference to this contract, the assignment of Ward to the Jake Strickland Lumber Company would not be good against the claims of the materialmen and laborers accruing in tbe construction of tbe building. For tbe errors indicated tbe judgment is reversed, and tbe canse remanded.

Reversed and remanded.