Opinion
No. 31934.
November 25, 1935. Suggestion of Error Overruled January 13, 1936.
1. CONTRACTS.
Where bank which owned golf course agreed to lease it in consideration of lessee's deposit of money with bank which money was to be withdrawn by lessee in payment of repairs, and subsequently on lessee's failure to deposit money bank agreed to accept repairs in lieu of money, laborers and materialmen who contracted with lessee to make repairs and improvements held not entitled to recover from bank for such repairs, where there was no obligation on part of bank express or implied to pay claims (Code 1930, section 2259).
2. FRAUDS, STATUTE OF.
Alleged oral promise of president of lessor of golf course to pay laborers and materialmen who contracted with lessee to make repairs and improvements was void since it was promise to answer for debt or miscarriage of another person which promise had to be in writing (Code 1930, section 3343 (a).
3. MECHANICS' LIENS.
Laborers under contractor have no lien and cannot impose on owner any higher duty or further payment than he by his contract has imposed on himself (Code 1930, section 2259).
APPEAL from the circuit court of Harrison county; HON.W.A. WHITE, Judge.
Doty Johnston, of Gulfport, and Biloxi, for appellants.
This suit was commenced under the provisions of section 2262 of the Mississippi Code of 1930, providing "and the suit shall be commenced by petition." The laborers who worked under and with the original petitioner were made defendants to the original suit, along with appellee, under the provisions of section 2263 of the Code of 1930.
The county court had jurisdiction of the demand of original petitioner.
The jurisdiction of a court is determined by the amount in controversy at the time when the court is first called on to exercise jurisdiction, which in a trial court is the amount claimed at the time when the suit is instituted.
Mobile, etc., R. Co. v. Hitt, 99 Miss. 679, 55 So. 484; May v. Williams, 61 Miss. 125, 48 Am. Rep. 80; 15 C.J., sec. 64, pages 768, 769, 770; Delmas v. Morrison, 61 Miss. 314; Paris Mercantile Co. v. Hunter, 74 Ark. 615, 86 S.W. 808.
With respect to inferior courts it has been held that such a court has jurisdiction of an action on several demands, each within the jurisdictional amount, although the total of the demands exceeds the juridiction of the court.
15 C.J., pages 760, 769, 770; Schneider v. Fairmon, 194 S.W. 251; Keystone Min. Co. v. Gallagher, 5 Colo. 23; Fries v. Wiser, 62 Pa. Super. 218.
The parties named as defendants in the original petition were authorized to propound their claims.
Sections 2263 and 2265, Code of 1930.
The statute of jeofails cures defects in the pleadings and defects in the proceedings.
Grubbs v. Collins, 54 Miss. 485; Trustees v. Gilman, 55 Miss. 148; Noble v. Terrell, 64 Miss. 830, 2 So. 14; Anderson v. Daniel, 136 Miss. 456, 101 So. 498.
The lien given by the statute to mechanics and materialmen is but a cumulative remedy to enforce their respective contracts, and independently of the lien such parties may resort to the ordinary common-law remedies to enforce their contracts, as by action to recover personal judgment.
27 Cyc., Mechanics' Liens, pages 318-20; Keystone Mining Co. v. Gallagher, 5 Colo. 23.
With respect to inferior courts it has been held that such a court has jurisdiction of an action on several demands, each within the jurisdictional amount, although the total of the demands exceeds the jurisdiction of the court.
15 C.J., sec. 64, pages 768-70; Schneider v. Fairmon, 194 S.W. 251; Keystone Mining Co. v. Gallagher, 5 Colo. 23; Fries v. Wiser, 62 Pa. Super. 218; Ehlers v. Elder, 51 Miss. 495; Miller v. Carlisle, 127 Cal. 279; Tian v. Lloyd, 21 Tex. Civ. App. 433, 52 S.W. 982; Duff v. Snider, 54 Miss. 245; Williams Williams v. Warren, 99 So. 269; Bohannon v. Fulton, 31 Miss. 348; Martin v. Tarver, 43 Miss. 517.
Appellee could not complain of the action of the original petitioner and interveners in abandoning their claim to a lien on the property of appellee and seeking only a money judgment.
Sec. 536, Code of 1930; Queen Ins. Co. v. Betbreze, 98 Miss. 262, 53 So. 592.
A finding of fact by a jury is binding on a trial court and appellate courts and will not be disturbed on appeal.
Watkins v. Watkins, 142 Miss. 210; Thomas v. State, 129 Miss. 332; N.O. R. Co. v. Ward, 132 Miss. 463; Louisville R. Co. v. Jones, 134 Miss. 53; Ayers v. Tonkel, 138 Miss. 712; Green v. Everson, 141 Miss. 129; Pierce v. Garrett, 142 Miss. 641.
It is appellants' contention that Gormly was the agent of appellee by express authority of the words of the lease contract.
21 R.C.L., sec. 109, pages 930, 931; 10 R.C.L., Estoppel, page 692.
Appellee accepted the benefits of Gormly's acts and was therefore liable to appellants.
21 R.C.L., sec. 111, page 932; Meyer v. Morgan, 51 Miss. 21; 2 L.R.A. 809.
Appellee was estopped to deny Gormly's authority to contract with appellants and bind the appellee.
21 R.C.L., sec. 84, pages 907; Phelps v. Sullivan, 140 Mass. 36, 2 N.E. 121, 54 Am. Rep. 442.
The apparent authority of an agent to act as the representative of his principal is to be gathered from all the facts and circumstances in evidence, and is a question of fact for the jury's determination.
Doggett v. Greene, 254 Ill. 134, 98 N.E. 219; Bond v. Pontiac, etc., R. Co., 62 Mich. 643, 4 A.S.R. 885; Dierkes v. Hauxhurst Hand Co., 80 N.J.L. 369, 79 A. 361, 34 L.R.A. (N.S.) 693; Horton v. Early, 39 Okla. 99, 134 P. 436, 47 L.R.A. (N.S.) 314; Wise v. Pugh, 106 So. 81, 140 Miss. 479; Gibson v. J. Snow Hardware Co., 94 Ala. 346, 10 So. 304; Birmingham News Co. v. Birmingham Printing Co., 104 So. 506, 213 Ala. 256.
W.L. Guice and J.D. Stennis, Jr., both of Biloxi, for appellee.
In appellee's motion for a new trial there are several reasons stated why the verdict and judgment should have been set aside and a new trial granted, among those being the change in the form of actions made by the appellants' abandonment of their claim to a lien, under which claim for a lien they were permitted to join in one cause their several claims in rem.
1 R.C.L., Actions, sec. 39, page 364.
Courts of law will not take cognizance of distinct and separate claims of liabilities of several persons in one suit, though standing in the same relative situation.
The law does not permit separate creditors to join in a single action against their debtor unless there be a joint interest between them in the thing demanded or a privity of contract which authorizes the joinder.
Walker v. Powers, 104 U.S. 245; Ryder v. Jefferson Hotel Co., 121 S.C. 72, 113 S.E. 474, 25 A.L.R. 739; Gardner v. Rumsey, 81 Okla. 20, 196 P. 941, 25 A.L.R. 1411; Tanner v. Culpepper Construction Co., 117 Va. 154, 83 S.E. 1052, Ann. Cas. 1917E 794.
The appellants wholly failed to make out a case against appellee.
Crocket v. Young, 1 S. M. 241; Allen v. State, 1 Miss. 126; Barnett v. Jayne, 1 Miss. 65; Otey v. McAfee, 38 Miss. 348; Dobson v. State, 67 Miss. 330, 7 So. 327.
We respectfully submit that since said cause is presented to the court upon a special bill of exceptions comprising the whole record in said cause, and since the dismissal of said cause by the trial court accomplished the same result that would have been accomplished had there been either a directed verdict for the appellee or a peremptory instruction given for the appellee, the action of the trial court as well as the first appellate court should be by this honorable body affirmed and judgment here rendered in favor of appellee.
Argued orally by L.H. Doty, for appellant, and by W.L. Guice, for appellee.
Appellee owned the Biloxi Golf Course, including the club house thereon. Appellant R.B. Wenger began this proceeding in the county court of Harrison county under section 2262, Code of 1930, to enforce a lien against the golf course and club house owned by appellee for labor and materials furnished by him for their repair and improvement. Six others claimed liens of the same character on the property; they were named by appellant in his petition, and intervened and became parties to the cause, propounding their claims. No one of the claims exceeds the sum of one thousand dollars, but the aggregate of all does exceed that amount. There was a judgment in the county court for appellee, from which judgment appellant appealed to the circuit court where the judgment of the county court was affirmed, and from the judgment of the circuit court appellants prosecute this appeal.
Appellee became the owner of the Biloxi Golf Course subject to a first mortgage bond lien in the principal sum of fourteen thousand dollars. The course and the club house were in bad repair. C.W. Gormly desired to lease and operate the property, and the right to purchase it. Appellee was desirous of disposing of it in some satisfactory manner. On the 1st day of November, 1933, Gormly and appellee entered into a written contract with reference to the matter. The pertinent parts of the contract provided substantially as follows: That Gormly should lease the property for one year from that date, for which he agreed to pay a rental of two thousand five hundred dollars, which was to be paid into appellee bank in cash on the date of the execution of the contract; that Gormly should expend this two thousand five hundred dollars, on his checks, subject to appellee's approval, in repairing and reconditioning the course and club house; that at the end of the year Gormly should have the option of a lease for another year at a rental of two thousand five hundred dollars. In addition to the annual rental of two thousand five hundred dollars, Gormly was to pay all "taxes, water rent, upkeep or any other charges or expenses, or damages that might arise by the operation of the said golf course." The contract also contained a purchase option by Gormly, which provided that he should have the right to purchase the property for the sum of fifty thousand dollars to be paid by his assuming the first mortgage bonds of fourteen thousand dollars, in addition, ten thousand dollars in cash, ten thousand dollars one year after the purchase, and sixteen thousand dollars of preferred stock in a corporation to be organized by Gormly for the purpose of perfecting the purchase.
On the same day this contract was entered into, Gormly entered into a written contract with appellant R.B. Wenger on behalf of the latter and six of his employees who are the six interveners in this cause. This contract provided, in substance, that R.B. Wenger and his employees should do the repair work on the golf course and club house and should be paid for their services by Gormly in the manner fully set out in the contract. The principal part of the repair work, and the materials furnished for that purpose, occurred during the months of November and December, 1933, and January, 1934.
At the close of the testimony, and before instructions were given to the jury and argument of counsel was made, appellants abandoned their claims for liens on the property and asked alone for money judgments. The jury returned a verdict in favor of appellants, naming the amount due each, the aggregate of which, as stated, was more than one thousand dollars. On appellee's motion for a new trial the court set aside the verdict upon the ground that the county court was without jurisdiction because the amount involved was above one thousand dollars, the maximum of its jurisdiction as fixed by section 693, Code of 1930, and rendered final judgment for appellee. That action of the court is one of the grounds relied on by appellants for a reversal of the judgment.
We pass that question and place our decision upon the other main contention of appellee, that is, that the court erred in denying its request for a directed verdict upon the ground that there was no obligation on the part of appellee, express or implied, to pay the claims of appellants; that they had the right alone to look to Gormly or appellant R.B. Wenger and Gormly (Gormly is not a party).
On the 14th day of February, 1934, Gormly and appellee entered into an amendment to the original contract, in which it was recited, among other things, that Gormly had failed to put up with appellee the first year's rental of two thousand five hundred dollars, but that appellee would accept the repairs and improvements made on the golf course and club house in lieu of the two thousand five hundred dollars. It provided further, "the lessor (appellee) and the leased premises shall in no manner be liable for any improvements placed upon said leased premises by the lessee." There was no evidence tending to show that appellee had anything whatsoever to do with the employment by Gormly of appellant R.B. Wenger or his six helpers doing the repair work. Under the contract Gormly was to do the repair work or have it done, and appellee was to pay him, not his sub-employees. Some of the appellants testified that after the repairs had been made, and also while they were in progress, they spoke to Mr. Tonsmiere, appellee's president, about their pay for the work, and that Mr. Tonsmiere encouraged them to believe they would be paid, but none of them testified that he promised, for his principal, to pay their claims. Whatever occurred between them rested in parol. If appellee's president had promised to pay appellants' claims after they had accrued, under paragraph (a) of section 3343, Code of 1930, of the statute of frauds, such a promise would be void because not in writing, it would be a promise to answer for the debt or miscarriage of another person, which, to bind a promisor, had to be in writing. Furthermore, taking the testimony most strongly in favor of appellants, their conversations with appellee's president during the progress of the work show no specific promise that appellee would pay for it. At most, it was only to encourage appellants that they would be paid either by Gormly or appellant R.B. Wenger, or both.
Section 2259, Code of 1930, provides that the lien of laborers and materialmen shall exist only in favor of the person employed, or with whom the contract is made to perform the labor and furnish the materials, and his assigns. The point is that appellee employed Gormly, and Gormly alone, and paid him in full to perform the labor and furnish the materials to do the repair work. He was at liberty, of course, to employ others to do it for him, which he did, at least in part, but that did not make those so employed employees of appellee. It was held, in construing this statute, in Herrin v. Warren, 61 Miss. 509, that laborers under a contractor have no lien and cannot impose on the owner any higher duty or further payment than he by his contract has imposed on himself.
We, therefore, are of the opinion that the appellee was entitled to a directed verdict.
Affirmed.