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Steward Lewis v. Morris

Supreme Court of Mississippi, Division B
Nov 21, 1932
144 So. 480 (Miss. 1932)

Opinion

No. 30215.

November 21, 1932.

NOVATION.

Even if defendants' contract to use third person's dredge boat and employees and pay such employees amount then due from third person was Sunday contract, defendants' subsequent similar promise on Monday held under evidence valid novation contract with independent consideration.

APPEAL from chancery court of Harrison county. HON. D.M. RUSSELL, Chancellor.

Luther Maples, of Gulfport, for appellants.

The appellees in their brief contend that their right to recover grew out of an agreement made between Steward Lewis and J.C. Bonham on Sunday, February 1st, and they cannot, under the laws of this state, recover under a Sunday contract, either directly or indirectly, nor can they claim any benefits arising by virtue of the said Sunday contract. If the appellee's contention is correct, that said Steward Lewis took over the dredge boat it is admitted that they took it over on Sunday and that in the contract for taking over the dredge boat that they were to pay all the obligations that said J.C. Bonham owed and the appellees herein relied upon this agreement between J.C. Bonham and Steward Lewis, for the payment of their accounts and they are precluded from recovering against said Steward Lewis on two counts; First, that this was a void contract for the reason that it was made on Sunday, and Second: said contract was void because in violation of the statute of frauds in assuming the obligations of another without reducing same to writing.

One is entitled to have any charge that is made against him in a court of equity clearly stated in order that he may defend same and the pleading in this case violate the fundamental rules of pleading.

Griffith on Chancery Practice, pages 164, 166, 167, 172 and 193.

J.C. Ross, of Gulfport, for appellees.

The appellants contend that there was no consideration moving to Steward Lewis that would sustain the assumption of the obligation by Steward Lewis of the indebtedness due the appellees here, in the absence of a written contract, the statute of frauds having been pled, but it is clearly shown by the testimony of several of the witnesses that the respondents, appellees here, had a legal ground to attach and tie up the dredge boat and other property being used in and about the construction of the sea wall and that they had decided and were preparing to file such a procedure. It is unquestionably true that the foregoing and withholding of the filing and prosecuting of a legal cause of action is sufficient consideration, which has been held by this court in numerous cases.

Dodge v. Cutrer, 100 Miss. 647, 56 So. 455; Barnes v. Jones, 111 Miss. 337, 71 So. 573; Miller v. Bank of Holley Springs, 131 Miss. 55, 95 So. 129, 31 A.L.R. 698; Page v. Sadler, 134 Miss. 459, 99 So. 8; Bank of Woodland Case, 99 So. 8.

It is clearly and conclusively proven by several witnesses above mentioned that this contract between Mr. W.D. Steward, representing the co-partnership of Steward Lewis, and these several appellees here, was entered into on Monday.


This is an appeal from a final decree of the chancery court of Harrison county in favor of the appellees, all of whom are laborers, against W.D. Steward and G.C. Lewis, constituting the firm of Steward Lewis, who were engaged in building a sea wall in Harrison county, Mississippi.

It appears that one J.C. Bonham had a boat with which he was getting sand and gravel at Handsboro, Mississippi, for the use of Steward Lewis in constructing the sea wall; and he had become indebted to the appellees here (Morris et al.) for labor. He made a contract with said Steward Lewis by which they were to take the dredge boat and pay what he (Bonham) owed the appellees, and use the dredge boat in filling behind the sea wall with sand from Mississippi Sound.

It appears from some of the evidence that this was a Sunday contract between Bonham and Steward Lewis, but that on the Monday following, or, at least, on Monday, he made an agreement with appellees (Morris et al.) that, if they would go with the boat around Mississippi Sound, and if they would remain on the dredge boat as employees, Steward Lewis would pay whatever Bonham owed them.

There is no dispute about the amount owing to the appellees (Morris et al.), but the contention is as to whether or not Steward Lewis were liable for the amount.

Without going into the details of this law-suit, we have examined the evidence and pleadings, and, regardless of whether the contract between Bonham and Steward Lewis was made on Sunday or not, the agreement of Steward Lewis, on Monday, promising to pay the appellees what Bonham owed them under his contract with them, and their promise to go with the boat, continue the work, and forbear to assert any right they had against Bonham, is a sufficient consideration to constitute a valid contract of novation. In other words, under the evidence in the case, there was independent consideration flowing from the appellees to Steward Lewis to constitute a consideration for their agreement.

The chancellor's findings on the evidence cannot be disturbed, and the judgment will be affirmed.

Affirmed.


Summaries of

Steward Lewis v. Morris

Supreme Court of Mississippi, Division B
Nov 21, 1932
144 So. 480 (Miss. 1932)
Case details for

Steward Lewis v. Morris

Case Details

Full title:STEWARD LEWIS v. MORRIS et al

Court:Supreme Court of Mississippi, Division B

Date published: Nov 21, 1932

Citations

144 So. 480 (Miss. 1932)
144 So. 480