Bailey v. Worton

752 So. 2d 470, 1999 WL 1103499
CourtCourt of Appeals of Mississippi
DecidedDecember 7, 1999
Docket1998-CA-01575-COA
StatusPublished
Cited by11 cases

This text of 752 So. 2d 470 (Bailey v. Worton) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey v. Worton, 752 So. 2d 470, 1999 WL 1103499 (Mich. Ct. App. 1999).

Opinion

752 So.2d 470 (1999)

Robert M. BAILEY, Appellant,
v.
Richard WORTON d/b/a Worton Asphalt & Paving, Appellee.

No. 1998-CA-01575-COA.

Court of Appeals of Mississippi.

December 7, 1999.
Rehearing Denied February 8, 2000.

*472 James E. Woods, Attorney for Appellant.

Christian T. Goeldner, Southaven, Gregory C. Morton, Olive Branch, Attorneys for Appellee.

BEFORE SOUTHWICK, P.J., LEE, AND PAYNE, JJ.

LEE, J., for the Court:

¶ 1. The Chancery Court of DeSoto County found that a construction lien filed pursuant to Miss.Code Ann. § 85-7-131 by Richard Worton d/b/a/ Worton Asphalt & Paving, the appellee, was enforceable against Robert M. Bailey, the appellant and true owner of the subject property, having determined that there was sufficient evidence to establish that the general contractor, Ray and Associates, was an implied agent acting within the "apparent authority" granted by Bailey, in contracting with Worton. Having found no error, we affirm the judgment of the lower court.

FACTS

¶ 2. Robert M. Bailey, the appellant, and his partner were the developers of the College Hills Subdivision in Olive Branch where Worton Asphalt & Paving had installed a driveway on a lot the title of which is in the name of the appellant, Bailey. Bailey, in his effort to develop the area in the back portion of the subdivision where the subject lot is located, made an agreement with Billy and Sandra Ray d/b/a Ray & Associates, as builders and *473 realtors, granting permission to them to build a house on the lot. The Rays were free to build the house as they wished, subject to the architectural approval consistent with the covenants of the subdivision. Ray was to secure a purchaser for the house and would pay Bailey for the lot when the house sold.

¶ 3. Bailey testified that he signed a note from the Bank of Tunica and loaned Ray the money on the lot for the house. Ray began construction and advertised the house for sale. The ad represented Ray & Associates as the sellers and real estate agents. The Rays later entered into a contract for the construction and sale of the house with Joe and Wendy Hill. Ms. Hill testified that she did not know at that time that Bailey was the owner of the lot. The contract with the Hills provided that the Hills would provide the labor for a portion of the construction of the house. Construction proceeded; however, the Rays developed financial problems and did not pay Worton Asphalt & Paving for the paving of the driveway of the house.

¶ 4. Ms. Hill testified that the asphalt work for the driveway was ordered by the Rays. Hill stated that she was present when Worton Asphalt arrived at the lot to pave the driveway. However, Worton Asphalt was prepared to leave the construction site without performing the work since neither of the Rays was present to sign the contract for $2,900. Hill managed to contact Sandra Ray by phone while Worton Asphalt was still at the site, and Ray authorized Worton to do the work. Billy Ray arrived at the site of the construction shortly thereafter, and the driveway was then paved. Bailey was not aware that the drive had been paved until several days later when he was driving through the subdivision. He stated that he was no more involved in the construction or progress of this house than he was with any other house in the subdivision, and his involvement was limited to getting paid for the lot when the house was sold.

¶ 5. Worton himself did not testify but his foreman, Mr. Collins, did. No testimony was offered regarding Bailey, and there was nothing to indicate that Worton relied on the Rays as agents of Bailey or had any knowledge that they were agents of Bailey. Hill was unequivocal in her testimony that Bailey was not involved with the negotiation and execution of the Hill contract with the Rays for the purchase of the house and that she did not even know of Bailey at the time that the contract for the house was signed. Bailey stated in his testimony that he met Ms. Hill for the first time when she stopped him in the road one day as he was driving through the subdivision. Hill knew who Bailey was because Sandra Ray made frequent references to him and had spoken with him on her speaker phone from her office in Hill's presence. Hill also testified that Ray periodically notified Bailey of the progress of the construction of the house. At the time that Hill stopped Bailey as he was driving, she expressed her problems to him regarding the Rays and told Bailey that she was prepared to hire an attorney. As a result of this conversation, Bailey said that he called Sandra Ray and asked her to get in touch with the Hills to work out their problem. Bailey also testified that he did not tell Hill that he was the actual owner of the lot at that time because he did not realize that he was. He indicated that in the past such agreements for construction had been prompted by a conveyance of the lot through a second mortgage. He testified that the house was Sandra's and that he "had even forgotten about the title being in my name until they brought it up."

¶ 6. Worton Asphalt & Paving filed a construction lien pursuant to Miss.Code Ann. § 85-7-131 (1972) for $2,900 for the driveway and sought enforcement against Bailey. As to the claim of lien, Miss.Code Ann. § 85-7-135 (1972) reads as follows: "The lien declared in Section 85-7-131 shall exist only in favor of the person employed, or with whom the contract is made to perform such labor or furnish *474 such materials or render such architectural service, and his assigns, and when the contract or employment is made by the owner, or by his agent, representative, guardian or tenant authorized, either expressly or impliedly, by the owner."

¶ 7. The Chancery Court of DeSoto County, having determined that there was sufficient evidence to establish an implied agency relationship between the general contractor with whom the appellee contracted and Bailey, found the lien to be enforceable against Bailey. Bailey appeals, claiming that the Rays' agreement with Worton does not bind him.

ISSUES

I. IS RAY AN IMPLIED AGENT OF BAILEY?

¶ 8. An agent is one who stands in the shoes of his principal; he is his principal's alter ego. An agent is one who acts for or in the place of another by authority from him; one who undertakes to transact some business or manage some affairs for another by his authority. He is a substitute, a deputy, appointed by the principal, with power to do the things which the principal may or can do. 2 C.J.S. Agency § 1 c (1936). The most characteristic feature of an agent's employment is that he is employed primarily to bring about business relations between his principal and third persons, and this power is perhaps the most distinctive mark of the agent as contrasted with others, not agents, who act in representative capacities. First Jackson Securities Corp. v. B.F. Goodrich Company, 253 Miss. 519, 532-33, 176 So.2d 272, 278 (1965).

¶ 9. The applicable standard of review will not permit that the finding of the trier of fact be disturbed on appeal if there is substantial supporting evidence even if under the same proof we might have found otherwise. The finding of fact may not be set aside unless manifestly wrong. Dungan v. Dick Moore, Inc.,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
752 So. 2d 470, 1999 WL 1103499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-worton-missctapp-1999.