McLeod Lumber Co. v. Anderson Mercantile Co.

62 So. 274, 105 Miss. 498

Opinion

Smith, C. J.,

delivered the opinion of the court.

This is a suit instituted originally in the court of a justice of the peace by appellee to recover upon an open account for merchandise alleged to have been sold and •delivered, the liability for each item of which was denied by appellant. Appellee claims to have delivered the merchandise to the Glazier Lumber Company at the request •of appellant, receiving from it in each instance either a written or telephone order so -to do.

The court, over the objection of appellant, permitted appellee to introduce parol testimony relative to these written orders, without producing them or showing the loss or destruction thereof, and in so doing committed •error.

The fourth instruction for appellee should not have been given, for the reason, first, it was not supported by the evidence; and, second, the suit was for goods, sold and delivered, and not for money had and received.

Reversed and remanded.