Kimbrough v. Ragsdale & Co.
Mississippi Supreme Court
From the circuit court of Leflore county. Hon. R. W. Williamson, Judge. Appellees, Ragsdale & Co., filed their petition in a justice court against Walter Fuller, contractor, and A. McC. Kimbrough, owner, to enforce a lien for the price of materials furnished in the construction of a dwelling-house by the said Kimbrough. The petition averred a joint liability of the defendants under a verbal contract by which the materials were furnished.
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From the circuit court of Leflore county. Hon. R. W. Williamson, Judge. Appellees, Ragsdale & Co., filed their petition in a justice court against Walter Fuller, contractor, and A. McC. Kimbrough, owner, to enforce a lien for the price of materials furnished in the construction of a dwelling-house by the said Kimbrough. The petition averred a joint liability of the defendants under a verbal contract by which the materials were furnished. On the account bill of particulars filed with the petition, the materials were charged to “A. McC. Kimbrough, per Walter Fuller.” The suit was dismissed in…
1Opinion of the CourtCooper, J.
The petition in this cause is based upon a sale to Fuller and Kimbrough jointly. The court properly overruled the motion to dismiss the petition, for it could not know that the contract, as stated, would not be proved. No objection was made to the evidence offered Iby the petitioner to establish the sale to Kimbrough alone. The slightest reflection should have suggested that in that way only can advantage be taken' of a variance between the cause of action as stated in the pleadings, and that sought to be proved. Our code, § 1134, provides that one or more of several joint- contractors may be…
2Cited by14 opinions
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