Town of Senatobia v. Ryan

63 So. 680, 106 Miss. 413

• Court: Mississippi Supreme Court
• Decided: October 15, 1913
• Status: Published

Opinion

Cook, J.,

delivered the opinion of the court.

J. N. Byan entered into a contract with the town of Senatobia to do certain concrete wort upon the streets of the municipality. It appears from the record, that after doing a portion of the work he abandoned the job, leaving for parts unknown, because of an apprehension that the grand jury might prefer against him an indictment for some infractions of the law. Before leaving he gave to A. L. McCormick, one of the sureties on his bond to the city for the faithful performance of his contract, a written order on the board of mayor and aldermen, which order is in the following words, viz.: “To the Board of Mayor and Aldermen of the Town of Senatobia: Please pay to A. L. McCormick all amounts and warrants which may be due me for all work done for the town of Sena-tobia under contract dated August 11, 1909, and for so doing this shall be your warrant. Witness my signature this 3rd day of September, 1909. J. N. Byan.” When this order was presented to the town board the board required the sureties on Byan’s bond to enter into an agreement that McCormick might go ahead and complete Byan’s contract, and that the bond signed by them as Byan’s sureties would not be vitiated by this arrangement. The record shows that McCormick did then go-ahead with Byan’s contract and complete the same according to “contract, if his testimony is to be believed. The jury did believe McCormick, for they returned a verdict in his favor. This action was instituted in the name of Byan for the use of McCormick, and it is insisted that Byan had parted with the legal title by his order on the board above set out, and therefore the court should have directed the jury to find for the defendant.

We do not think this contention is sound under the facts of this case. If McCormick had stood on his order and the hoard had accepted same, the contention would be maintainable. The facts are that Ryan had entered into contract to complete certain work, and by the arrangement between the town board, McCormick, and the other sureties on Ryan’s bond, McCormick completed Ryan’s contract. By this arrangement Ryan’s contract was recognized as still in force by all the parties in interest, and McCormick, by mutual agreement, was acting as agent for Ryan. The order given by Ryan was ignored and McCormick was accepted as Ryan’s representative, and the legal title to the cause of action therefore still remained in Ryan. If this is true, the action was properly instituted in Ryan’s name for the use of McCormick.

There is no merit in the contention that interest should not have been allowed on the verdict. The ve,rdict was in these words: “We, the jury, find for the plaintiff the sum of .one thousand seven hundred and six dollars and eighty-four cents with legal interest to date.” In entering the judgment the court allowed six per cent, interest from the date the suit was filed, and we think defendant has no just complaint.

Affirmed,