Manning v. Bienville Lumber Co.

152 So. 885, 169 Miss. 643, 1934 Miss. LEXIS 46

• Court: Mississippi Supreme Court
• Decided: March 5, 1934
• Docket: No. 30890.
• Status: Published

Opinions

Ethridge, J.,

delivered the opinion of the court.

The Bienville Lumber Company filed a petition in the circuit court of Hinds county to establish a materialmen’s lien upon a building erected by J. 0. Manning of materials furnished by the Bienville Lumber Company.

It appears that one Cassity made an agreement with the appellant, J. O'. Manning, by which Cassity was to sell a bill of lumber to the appellant in payment of a debt owing to Manning by Cassity; the latter being a stockholder in the Bienville Lumber Company. The bill was made out by Cassity with this notation at the bottom thereof:

“Mr Mitchell (he being manager of the Bienville Lumber Company).

“Mr. Manning wants you to quote him F. 0. B. Jackson, the above bill of lumber as soon as possible.

“Yours M. M. C.’’

Mr. Mitchell knew Cassity’s handwriting, and made Manning a price on the bill of lumber, mailing it to Cassity and delivering the lumber to Manning who used it in the erection of a house.

It would seem that the Bienville Lumber Company did not know of the agreement between Cassity and Manning, and that Manning did not know, until after he had used the lumber in the' erection of his house, that Cassity had not paid for the lumber or that it had been billed to him. Manning refused to pay the Bienville Lumber Company for the lumber, and this proceeding was instituted. On the trial, the circuit judge denied the lien prayed for, but gave judgment against Manning for the amount sued for, from which this appeal is prosecuted.

As shown by the record, Manning did not intend to have the lumber billed to him, as he was buying it from Cassity, and Cassity was not Manning’s agent in procuring the lumber, and there was no agreement of any kind that the lumber was to be purchased, by Manning, from the Bienville Lumber Company. Cassity seems to have misled both parties in this transaction; and there was no meeting of minds between Manning and the Bienville Lumber Company, since Manning had not bought the lumber from said company.

Under these circumstances, Cassity would be liable to the Bienville Lumber .Company for the lumber, but Manning would not, since Cassity caused the lumber to be delivered to Manning, and, while Cassity may not have been authorized by the Bienville Lumber Company to have this lumber charged to himself, still he would be liable to the Bienville Lumber Company because of his failure to disclose the true facts to said company.

There having been no contract between Manning and the Bienville Lumber Company, either express or implied, there could be neither a lien established on the building, no.r a judgment against Manning.

The judgment of the court below will therefore be reversed, and the cause dismissed.

Reversed, and cause dismissed.