Foster-McLaurin Furniture Co. v. Duvall

Counsel

F.B. Collins, for appellant. The only question is whether the court erred in directing a verdict for appellees under the evidence. It is our contention that the question whether or not the articles purchased by the appellees in this case, under the circumstances, were necessaries, was a question of law to be decided by the court. The question of what are necessaries for infants is a mixed question of law and fact. It is for the court to determine as a matter of law as to whether or not the articles in question come within the general class of necessaries, and for the jury to determine from the station and standing in life and the surrounding circumstances of the infants, whether the articles were actually necessary for them. But in this case the court decided both questions, and, therefore, invaded the province of the jury, taking from them the question as to whether or not the articles in question were necessaries for the appellees, under the circumstances that surrounded them at the time they were purchased. Decell v. Lewenthal 57 Miss. 331 ; Tyler on Infancy, sec. 73; Beeler v. Young, 1 Bibb. 519; 31 C.J., page 1078; Epperson v. Nugent, 57 Miss. 45 ; 5 Words and Phrases, "Necessaries," page 4702; Jordan v. Coffeefield, 70 N.C. 110 at 113. So we submit that, as a matter of law, the articles of furniture, sold to the appellees by the appellant, according to the great weight of authorities, come within the class of necessaries, and we cannot see how there could be any question about the fact that household goods are necessaries, or are within the general class. Then if the trial court decided, as a matter of law, that the articles of furniture in question did not come within the general class of necessities, his decision was against the correct rule of law as laid down by the weight of authorities, and it should be reversed. There could be no question about these articles coming within the class of necessaries, so the only question to be decided was whether the articles so furnished the appellees were necessaries under the particular circumstances of this case, when taking into consideration all the facts and circumstances surrounding appellees at the time they purchased them. And this was a question to be decided by the jury and not by the court. In our opinion, the court erred in taking this question from the jury and directing that a verdict for the appellees be found in this case. 31 C.J., page 1077, sec. 174. A.S. Scott, for appellees. Appellant claims that the question as to whether the articles purchased by the appellees in this case, under the circumstances, as shown by the evidence were necessaries, was a question to be decided by the jury and not a question of law to be decided by the court. Counsel in his brief misconceives the law when he states that the court invaded the province of the jury and took away from them the question as to whether or not the articles were actually necessary for them. The court did nothing of the kind. All the court did was to judicially determine that household furniture, for unmarried minors, who admittedly were boarding, before they decided to try "batching," were not in any shape, form or fashion necessaries, nor in any way or by any stretch of the imagination to be placed in the limited class of necessaries. The court was eminently correct in this decision. Counsel cited the Decell case, 57 Miss. 331 , as authority for his contention that the court erred in this case. The case is against appellant. It specifically holds that in suing for necessaries the particular articles for which the minor is being sued must be proved to be of a suitable kind and also actually needed. Where is the proof in this case that these minors actually needed this furniture? There is not one iota of evidence on the part of the appellant that the furniture was actually needed. The court below did not have to decide whether furniture under certain circumstances is a necessity and so finding, then pass it on to the jury as to whether it was actually necessary; for the Decell case holds that it is further the trial court's duty to determine whether the furniture, in this case, falls within the class of necessaries suitable to one in the appellees' conditions of life. There are persuasive authorities, showing the correctness of appellees' contention that the lower court did not err, but performed justly that duty given him under the authority of the Decell case, but counsel for appellees deems it superfluous to burden this court with any other citations.