Delta Lumber Co. v. Wall

Citations

• 119 Miss. 350
• 80 So. 782

Syllabus

<p>1. Feauds. Statute op Agreement within the statute of fraud.</p> <p>Where a lumber company had -originally contracted with a contractor to furnish material for building a house, but afterwards this contract was abrogated and a new verbal contract made between the lumber company and the owner of the house, by which he was to pay for the material as the work progressed, such last contract was not an agreement to pay the debt of another and unenforceable under the statute of frauds, because not in writing.</p> <p>2. Same.</p> <p>Such a contract was an original contract between the materialman and the owner and it was not necessary for it to be in writing, in order to impress the building into which material went, with a materialman’s lien.</p> <p>3. Contracts. Evidence. Accounts.</p> <p>The way in which the account was carried on the books of the materialman was not the material thing that determined whether or not there was a contract between the materialman and the owner — at most it was only a circumstance to be considered along with the other evidence.</p> <p>4. Frauds. Statute of. Agreement.</p> <p>Where an owner for whom a contractor was -building a house agreed to make payments directly to the materialman for materials going into the house, such agreement was not within the statute of frauds, as an agreement to pay the debt of another, but amounted to a promise by the owner to pay his own debt to a creditor of the contractor.</p> <p>5. Frauds. Statute of. Estoppel to attack validity of contract. Where because of the failure of the owner to carry out his verbal</p> <p>agreement with the materialman to pay for the material used in the construction of the owner’s house as the work progressed, the materialman failed to perfect his lien upon the house; in such case, the owner is estopped from asserting the invalidity of his verbal agreement under the statute of frauds.</p> <p>6. Mechanics’ Lien. Jury question.</p> <p>Under the facts in this case, as set out in its