Postal Telegraph & Cable Co. v. Friedhof , 127 Miss. 498 ( 1921 )

Anderson, J.,

delivered the opinion of the court.

(After stating the case as above.) The first section of the statute of frauds (section 4775, Code of 1906; section 3119, Hemingway’s Code) proAddes, among other things, that: “An action shall not be brought whereby to charge a defendant or other party—

“(a) Upon any special promise to answer for the debt or default or miscarriage of another person; . . .

“Unless . . . the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto laAvfully authorized.”

The rule is well settled that the memorandum in writing necessary to take a case out of the statute of frauds must contain the substantial terms of the contract, expressed with such certainty that they may be understood from the contract itself or some other writing to which it refers, without resorting to parol testimony. Waul v. Kirkman, 13 Smedes & M. 599; Id., 27 Miss. 823.

In Craft v. Lott, 87 Miss. 590, 40 So. 426, 6 Ann. Cas. 670, the facts were that Lott was the son of a defaulting tax collector. Craft, at the request of Lott, had become the surety on the tax collector’s bond of Lott’s father, and by reason of the defalcation of the father *had become liable to the county in the sum of one thousand, two hundred fifty dollars adjudged to be due by him. Craft sued Lott, charging that the latter had undertaken and promised to reimburse him for any loss which he might sustain by reason of the default of the father as such tax collector, which promise was in the form of a letter signed by Lott in the following language addressed to Craft: “Friend John: As it was through me that you signed the old gentleman’s bond, I feel honor bound to stand between you and all harm, and whatever damages are assessed against you I will work to pay the same% I have been quarantined here since September 2, but will be in Mobile in a few days.”

The court held in that case that the promise contained-in this letter was too vague and indefinite to meet the requirements of the statute.

The only writing relied on to take the promise in phis case out of the statute of frauds is found in several 0. K.’d bills of the messenger boys of the appellant which, as shown above, simply state in each instance the name of the messenger boy, the amount of the charge, with the letters “O. K.” followed by the initials of Barksdale, the manager. There is nothing in these 0. K.’d bills to show to whom the amounts were due nor by whom payable — both indispensable under the statute of frauds.

Furthermore' the evidence shows without conflict that Barksdale, the manager, had no authority to bind the appellant to pay these bills. Neither the fact of agency nor the scope and authority of the agent can be shown by the declarations of such alleged agent. Sumrall v. Kitselman Bros., 101 Miss. 783, 58 So. 594; Riechman-Crosby Co. v. Dinwiddie, 117 Miss. 103, 77 So. 906; Gulfport & Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340; Raleigh Co. v. Denham, 119 Miss. 406, 81 So. 118.

Whatever evidence there is, if any, in this case tending to show that Barksdale undertook to obligate the appellant to pay these repair bills consists alone of the statements, declarations, and acts of Barksdale made and performed out of court. Such declarations and conduct under the law have no binding force on the appellant either for' the purpose of establishing Barksdale’s agency or the scope and authority of his agency.

It follows from these views that the court ought to have directed a verdict for the appellant.

Beversed, and judgment here for appellant.