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the court had in mind the three cases just referred to, and clearly intimated its dissatisfaction with the rule so stated and necessarily overruled these cases, but did not deem it necessary to mention them by name. To prevent future misconception, we now overrule these cases on the point in question, and reaffirm the rule laid down in Road Commissioners v. Railroad, supra. The principle of this case was followed in Seymour v. Railroad, 117 Tenn. 98, 102, 98 S. W. 174, and in Barnes v. Noel, 131 Tenn. 126, 131, 174 S. W. 276, and Bòstick v. Thomas, 137 Tenn. 99, 101, 191 S. W. 968. Since Road Commissioners v. Railroad was decided we have uniformly followed the rule there laid down.

(139 Tenn. 687)

stroyed or consumed in the work on defendants' premises; only 10 per cent. of it being wasted, and 15 per cent. being damaged, and the furnisher did not have notice that the lumber was to be so used, or utilized otherwise than in the permanent structure.

These facts make applicable the rule announced in Daniel & Co. v. Weaver, 5 Lea (73 Tenn.) 392, and in Jonte v. Gill (Ch. App.) 39 S. W. 750 (opinion by the present Chief Justice), to the effect that it is not the actual use of lumber in a building by the owner that gives the furnisher a lien, but the furnishing under a contract for that use, and that the lien exists whether the lumber was used or not.

It is not essential that the materials furnished in good faith under a special contract for use in the erection of such a struc

YORK LUMBER & MFG. CO. v. MCKNIGHT ture be actually used, under Thomp. Shan.

Code, § 3531, providing for a lien in favor of one who furnishes material for the building contemplated.

& MERZ et al. (Supreme Court of Tennessee. May 11, 1918.) MECHANICS' LIENS 47-LUMBER USED FOR TEMPORARY PURPOSES-RIGHT TO LIEN.. Therefore the fact that there was only a Under Thomp. Shan. Code, § 3531, provid- partial waste or consumption of the lumber, ing for a lien in favor of one who furnishes ma-75 per cent. at least of which was usable at terial for the building contemplated, plaintiff, who in good faith furnished lumber, believing that it was to be used in a permanent structure, would be entitled to a lien, although the lumber was used in making forms for concrete, and at least 75 per cent. was usable at another place on completion of the work for defendants. Certiorari to Court of Civil Appeals.

Action by the York Lumber & Manufacturing Company against McKnight & Merz and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendants petition for certiorari. Denied. J. T. Rothrock, Jr., of Jackson, and Geo. & T. W. Harsh, of Memphis, for York Lumber & Mfg. Co. R. F. Spragins, of Jackson, for D. L. Williamson, petitioner.

WILLIAMS, J. Lumber, being material that is lienable, as relates to a theater building, under the statute (Thomp. Shan. Code, § 3531), is the furnisher thereof to be denied a lien by reason of the fact that a temporary and nonconsuming use is made of the lumber in making forms for concrete work, notwithstanding he did not supply the same with knowledge or intent that it would be so used, but, on the contrary, did so under a special contract which looked to the material being wrought into the structure?

In Cohn & Goldberg v. Construction Co., 131 Tenn. 445, 175 S. W. 536, it was held that a furnisher of lumber for use in the erection of concrete culverts in the making of forms for the concrete work was entitled to a lien upon a railroad under Thomp. Shan. Code, § 3580, where the lumber was practically consumed or destroyed in that use. There it appeared that the material was sold and delivered by the furnisher for that very use.

another place on completion of the particular work for defendants, does not avail to prevent a lien attaching.

Both of the lower courts so held. Writ of certiorari to bring under review the judgment of the Court of Civil Appeals is denied.

(139 Tenn. 691)

MCFARLAND v. BOWLING. (Supreme Court of Tennessee. May 11, 1918.) LIMITATION OF ACTIONS 87(3)-COMMENCEMENT OF SUIT-ABSENCE FROM STATE.

In view of Thomp. Shan. Code, §§ 4012, 4007, requiring creditors of a decedent residing within the state to bring suit against the administrator or executor within 2 years and 6 months after the qualification of such personal representative, and section 4455, providing that, if the executor or administrator shall be absent from or reside out of the state, the time of such absence or residence shall not be taken as any part of the time limited for the commencement of the action, the running of limitations may be arrested by filing a bill in chancery against such filing being the beginning of a suit, even an executor, although he is temporarily absent, though personal process be not then issued, and hence failure to file such a bill in time bars an action by a creditor against an executor to recover on decedent's promissory note.

Certiorari to Court of Civil Appeals.

Action by George B. Bowling against L. B. McFarland, executor, before a justice of the peace. A judgment for plaintiff was affirmed by the circuit court and reversed by the Court of Civil Appeals, and plaintiff brings certiorari. Affirmed.

Frank M. Gilliland and Julian C. Wilson, both of Memphis, for McFarland. D. M. Scales, of Memphis, for Bowling.

NEIL, C. J. This was an action brought

Here, the lumber was not practically de- before a justice of the peace of Shelby coun

ty against plaintiff in error as executor of a decedent on two promissory notes. There was a judgment before the justice which was affirmed on appeal to the circuit court of the county. The case was then appealed to the Court of Civil Appeals, where the judgment was reversed. The case then reached us on the writ of certiorari.

In the circuit court the plaintiff in error pleaded the 2 years statute of limitations applicable to actions against executors and administrators on the debts of the decedent. This is commonly called the 2 years and 6 months statute, because 6 months must elapse after the qualification of the personal representative before any action can be brought against him. It was replied that the executor was absent from the state for the period of 42 months during the running of the statute. There was evidence that he was absent at various times for 1 week. 2 weeks, 1 month, 2 months, etc., aggregating 42 months. If these absences can lawfully be aggregated and the sum deducted, the suit was brought in time, but otherwise too late, and was thus barred.

Tenn.) 416, 418. There having been no obstacle in the way of Bowling's filing such bill during the running of the statutory limitation of 2 years and 6 months, and thereby arresting the statute, notwithstanding the brief absences of the executor, and such bill not having been filed, the necessary conclusion is the present action was barred when it was brought after the expiration of the aforesaid limitation period.

We have not considered the question whether short absences of the kind referred to can be cumulated so as to save the bar, but, for the purposes of the present opinion, have assumed that they could be so united, and have reached the conclusion, on the ground stated, that even with this assumption in favor of the defendant in error, the bar was not escaped.

Therefore the judgment of the Court of Civil Appeals, reversing the trial judge and dismissing the suit must be affirmed, with costs.

(139 Tenn. 695)

TOWNSEND v. NEUHARDT.

(Supreme Court of Tennessee. April 27, 1918.)

1.

FRAUDS, STATUTE OF 23(1)—PROMISE TO

PAY DEBT OF ANOTHER-ORIGINAL PROMISE. Where the promise of a garnishee to pay plaintiff in garnishment a stated sum to be applied on the judgment if he would continue the between the parties, the statute of frauds as case to an agreed date was direct and clear as to answering for the debt of another did not apply. 2. CONTRACTS 54 (1) SUFFICIENCY.

CONSIDERATION

Creditors of a decedent residing within the state must bring suit against the administrator or executor within 2 years and 6 months after the qualification of such personal representative. Shannon's Code (Thomp. Ed.) §§ 4012, 4007. But there is an exception, which is insisted on in the present case, arising out of a section presently to be cited, viz.: That if the executor or administrator, against whom a cause of action has accrued, "shall be absent from or reside out of the state, the time of his absence or residence out of the state shall not be taken as any part of the time limited for the commencement of the action." Shannon's Code (Thomp. Ed.) § 4455. This exception, however, is not operative if it shall appear that the suit could have been brought in the state notwithstanding the absence of such executor or administrator. Boro v. Hidell, 122 Tenn. 80, 89 to 97, 120 S. W. 961, 135 Am. St. Rep. 857. A suit could have been brought against the executor at any time after his qualification and the expiration of the six months, in the chancery court of Shelby county, notwithstanding his temporary absence, simply by filing a bill against him, since in chancery the filing of the bill is the beginning of the suit, and arrests any statute of limitations, even though personal process be not then issued, or until a considerable time thereafter; the beginning of such suit not depending upon the issuance of process, but merely upon the filing of the bill. Shannon's Code (Thomp. Ed.) § 6122; Collins v. Ins. Co., 91 Tenn. (7 Pick.) 432, 435, R. H. Stickley, of Memphis, for plaintiff. 19 S. W. 525; Cowan, McClung & Co. v. Don- C. W. Anderson, of Memphis, for defendant. aldson, 95 Tenn. (11 Pick.) 322, 32 S. W. 457; Litton v. Armstead, 9 Baxt. (68 Tenn.) 514, 515; Montgomery v. Buck, 6 Humph. (25 a

A garnishee who was desirous of making a trip to another town in company with defendant in the garnishment proceeding offered to pay $100 to plaintiff if he would continue the case. The object in making the trip was to consummate a deal in coal lands whereby the garnishee expected to profit. Held, that the promise was supported by a consideration consisting of the the trip regardless of the fact that the expected benefit to the garnishee in being able to make benefits were not realized. 3. CONTRACTS Boro v. Hidell, 122 3. CONTRACTS 71(3)-CONSIDERATION-FOR

.

BEARANCE.

eration of $100 paid to him by the garnishee, Where a plaintiff in garnishment, in considcontinued the case, the forbearance on plaintiff's part, being a concession of part of his rights, constituted a sufficient consideration for the promise to pay.

4. CONTRACTS 53-CONSIDERATION-SUFFICIENCY.

To support a contract, the consideration does not have to be adequate; it need only be valuable.

Certiorari to Court of Civil Appeals.

Action by George E. Neuhardt against Joseph Townsend. Judgment for plaintiff. was reversed by the Court of Civil Appeals, and plaintiff brings certiorari. Reversed.

NEIL, C. J. The defendant in error had judgment against one Thompson. He

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

caused an execution to be issued on the judgment, and had plaintiff in error summoned as garnishee. The hearing of the garnishment was set for a day in July. At the time plaintiff in error was summoned he and Thompson had in contemplation a trip to be made by the latter to Pennsylvania to consummate a deal in coal lands. Under an agreement between plaintiff in error and Thompson, if the deal went through, the former was to receive $7,500. He was therefore desirous that Thompson should make the trip. Thompson had also been summoned for examination in the garnishment proceedings against Townsend, and he could not make the trip if he had to remain for that examination. So, in order to release Thompson for his trip, plaintiff in error in error promised Neuhardt that he would pay him $100, to be subsequently credited on the judgment, if he would continue the garnishment hearing to a day in the future agreed upon. The continuance was granted, and Thompson made the trip, but nothing was ever realized. Thereafter plaintiff in error

Tenn. 224-226, 2 S. W. 36; Brown v. Bus-
sey, 7 Humph. (26 Tenn.) 573, 574; Hall v.
Rodgers, 7 Humph, 536, 540, 541; Mills v.
Mills, 3 Head (40 Tenn.) 705, 711. The con-
sideration was equally clear. There was a
benefit to plaintiff in error in securing the
release of Thompson in order that he might
make his trip and effect the deal by which
plaintiff in error expected to profit to the
extent of $7,500. It is immaterial that the
expectation did not eventuate in realization,
so far as concerned the receiving of profits,
since there was a benefit to plaintiff in er:
ror in the opportunity afforded to make the
effort to secure the gains which he contem-
plated. The extent of the benefit is not ma-
terial so far as the existence of the consid-
eration is concerned.
eration is concerned. Randle v. Harris, 6
Yerg. (14 Tenn.) 508, 509. Furthermore, the
forbearance on the part of defendant in er-
ror to press his action under the garnish-
ment proceedings for a stated time was like-
or to press his action under the garnish-
wise a consideration for the promise. It is
true that, when the garnishment proceed-
ings, though instituted on a valid judgment
against Thompson, were subsequently decid-

refused to pay the $100. He was then sued in the present action, and pleaded the statute of frauds, on the ground that the prom-ed, it turned out that defendant in error took ise was made to answer for the debt, default, or miscarriage of another and was not in writing. He also insisted that there was no consideration. The trial judge rendered judgment against the plaintiff in error. He thereupon appealed to the Court of Civil Appeals, where this judgment was reversed. That learned court held that the contract for the payment of the $100 was a direct one between the plaintiff in error and the defendant in error, but that it was without consideration. The case was then brought to this court on the writ of certiorari.

[1-4] We are of the opinion that the judgment of the Court of Civil Appeals must be reversed, and that of the trial judge affirmed. The promise certainly was direct and clear from plaintiff in error to the defendant in error. When such is the case, the statute of frauds does not apply. Lookout Mountain Railroad Co. v. Houston, 85

nothing by them. This, however, cannot lessen the importance of the fact that the forbearance itself was a concession by the defendant in error to the plaintiff in error of a part of his rights, and was therefore to that extent an injury to the former. Tappan v. Campbell, 9 Yerg. (17 Tenn.) 436; Cathcart v. Thomas, 8 Baxt. (67 Tenn.) 172; Rivers v. Thomas, 1 Lea (69 Tenn.) 649, 650, 27 Am. Rep. 784. So, in either view, there was a consideration. Macon v. Sheppard, 2 Humph. (21 Tenn.) 334, 338. In order to support a contract, the consideration does not have to be adequate; it need only be valuable. McCarty v. Blevins, 5 Yerg. (13 Tenn.) 195, 196, 197, 26 Am. Dec. 262.

The foregoing principles fully support the conclusion we have reached.

The result is the judgment of the Court of Civil Appeals must be reversed and that of the trial court affirmed.

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MILES F. BIXLER CO. v. HALL

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2. SALES 124 - RESCISSION RETURN OF UNSOLD ARTICLES.

Although defendant buyer failed to return showcase when he returned unsold jewelry, after he discovered it was worthless, where he had paid plaintiff more than the value of the jewelry sold and plaintiff refused to receive jewelry returned and notified defendant that he would be sued for the purchase price, plaintiff could not contend in an action for price that verdict should have been directed for it, because showcase was not returned.

Appeal from Circuit Court, Hot Spring County; Scott Wood, Special Judge.

Action by the Miles F. Bixler Company against J. K. Hall, trading as the J. K. Hall Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Appellant sued appellee for $165 for a balance alleged to be due it for jewelry sold to appellee. Appellee entered into a written contract with the salesman of appellant for the purchase price of a lot of jewelry for $198. The contract contained an itemized list of the articles sold, and the price of each article. A showcase 3 feet high by 32 feet long, 20 inches deep, with sliding glass doors, was to be furnished for the purpose of displaying the jewelry. The contract did not contain any separate price for the showcase. The contract contained a provision for the privilege of exchanging any article purchased at any time within 18 months. It also contained a clause providing that if for any cause an article should prove to be unsatisfactory, it should be returned, and the seller would replace it with a new one, free of charge. The contract was sent to appellant by its salesman and was accepted by it on May 28, 1915.

According to the testimony of witnesses for the appellant, the goods delivered on the contract were tested by acid tests, and showed that they were free from defects; that the goods sent to appellee were of the kind, quality, and design stated in the contract; that where the order called for rolled gold plate or gold filled goods, goods of that character were sent.

257

ly worthless. Other witnesses testified that they had bought some of the jewelry, or had seen some that had been bought by others; that the jewelry would show brass or turn black after it had been worn two days; that it was absolutely worthless.

In the fall of 1915 appellee returned the jewelry to appellant by parcel post, and notified appellant of its return. Appellee had already paid $31.75 on the bill. Appellee notified appellant that the jewelry was absolutely worthless, and was returned on that account; that the amount paid by appellee to appellant was more than enough to pay for the jewelry which had been sold, and for the showcase which had been kept by ap pellee; that the showcase was not worth more than $8 or $10. Appellant refused to receive the goods back, and wrote appellee to that effect. Several letters were exchanged between the parties, and appellant in each of them refused to receive the jewelry, and insisted upon payment of the purchase price.

The jury returned a verdict for appellee, and the case is here on appeal.

Rogers & Barber, of Little Rock, for appellant. J. C. Ross, of Malvern, for appel

lee.

HART, J. (after stating the facts as above). It is insisted by counsel for appellant that the court erred in refusing to direct a verdict in its favor for two reasons:

[1] First, it is insisted that the evidence does not establish fraud in the procurement of the contract, and that by its terms appellee was required to exchange articles which proved to be unsatisfactory before he could defend a suit for the purchase price for failure of the consideration. It appears from the record that appellant was engaged in manufacturing jewelry and selling it to its customers from samples carried along by its traveling salesmen. In such cases the law implies a warranty that the articles shall be merchantable and reasonably fit for the purposes for which they were intended. Main v. Dearing, 73 Ark. 470, 84 S. W. 640, American Standard Jewelry Co. v. Hill, 90 Ark. 78, 117 S. W. 781, and Iowa City Bank V. Biggadike, 199 S. W. 539.

[2] Second, it is claimed that the court should have directed a verdict for the appellant because the appellee did not return the showcase. This is in application of the rule that before a party defrauded in a contract may rescind the contract and receive back John Hall, a son of J. K. Hall, testified what he paid, he must return the goods that he signed the contract for the jewelry, bought, or offer to return them. It appears and that the reason he did so, the salesman from the record in the present case that aptold him that he had made the contract with J. pellee sent back all the jewelry which he K. Hall, and that the latter had directed had not sold, but kept the showcase. Accordhim to tell his son to sign the contract for ing to the evidence adduced in favor of appelhim; that he sold some of the jewelry, and lee he had paid appellant $31.75. This was that it showed brass or turned black after more than the value of the showcase and of two days' use; that the jewelry was absolute- the articles which he had sold. Hence he

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-17

wrote appellant that he was returning the unsold jewelry, and would keep the showcase for the amount which he should recover back from appellant. Appellant absolutely refused to receive the jewelry, and notified appellee that it would not do.so. Appellant claimed that appellee had no right to rescind the contract, and notified him that it would proceed against him for the purchase price of the jewelry.

Under these circumstances it would have been a vain

to him by his guardian during infancy, in the absence of fraud.

Appeal from Circuit Court, Woodruff County; J. M. Jackson, Judge.

Petition by H. P. Dale to require J. H. Dale to file a final settlement as guardian. From a judgment finding that defendant had fully accounted for all money belonging to the ward, the plaintiff appeals. Affirmed.

Elmo M. Carl-Lee, of Augusta, and John J. F. E. Miller, of Searcy, for appellant. Summers and H. M. Woods, both of Augusta, and Chas. T. Coleman, of Little Rock, for appellee.

and useless thing for appellee to have tendered appellant the showcase. The written contract contained a list of the articles sold to appellee and the price of each article. Appellee paid appellant $31.75 before he discovered the jewelry was worthless. It was shown that this was a greater amount ⚫ than the value of the goods so sold. If appellee was entitled to rescind the contract, he would also be entitled to recover back the difference between the amount paid to appellant and the value of the articles sold upon the return or offer to return of the unsold articles. Appellee proposed to keep the showcase for the sum he was entitled to receive back. Appellant absolutely refused to treat with appellee, and declined to accept the goods returned. Therefore it cannot now which was filed along with the response to complain that a verdict should have been directed in its favor because appellee failed to return all the articles received by him under the contract.

It follows that the judgment must be affirmed.

(134 Ark. 61)

DALE v. DALE. (No. 298.) (Supreme Court of Arkansas. April 15, 1918.) 1. GUARDIAN AND WARD 109 ACCOUNTING-NOTES AND ACCOUNTS.

In proceeding against a guardian for an accounting the ward is only entitled to his share of what the guardian as executor of the estate to which the ward was an heir, got for notes and accounts ordered sold by the court, and he should not be charged with their face value. 2. EXECUTORS AND ADMINISTRATORS 462ACCOUNTING-COLLATERAL PROCEEDINGS.

An executor, as such, cannot be required to settle his accounts as executor in a proceeding against him as guardian of an heir of the estate. 3. GUARDIAN AND WARD 157 - ACCOUNTING-SUFFICIENCY OF EVIDENCE.

Evidence held sufficient to sustain finding that a guardian had paid to his ward all that was due him.

4. GUARDIAN AND WARD ACCOUNTING-NOTICE.

154-RECEIPTS

SMITH, J. On September 21, 1916, the appellant, H. P. Dale, filed his petition in the probate court, praying that citation issue, requiring the appellee, J. H. Dale, to file a final settlement as guardian of petitioner. It was conceded that no final settlement had been made, and that the guardian had not been discharged, but it was alleged, in response to the prayer of appellant's petition, that all funds which had come to the guardian's hands had been accounted for and paid over to the petitioner, and the final settlement

the petition showed a full and final settlement of all funds with which the guardian should be charged. This settlement was approved by the probate court, and upon the trial of the appeal in the circuit court the court found the fact to be that the guardian had fully accounted for all money belonging to his ward.

[1, 2] One of the items involved was for $395.40, and the facts in regard thereto are as follows: Appellee was the executor of the J. T. Hamblett estate, and appellant was entitled to a one-sixth interest in that estate as an heir. The executor filed a petition in the probate court, alleging that he had in his hands notes and accounts amounting to $2,372.97 and which he had failed to collect after using due diligence to do so, and he prayed, and was granted, an order directing their sale. Appellant seeks here to charge his guardian with one-sixth of the face of the notes and accounts so ordered sold. The court properly refused to charge the guardian with this item for two reasons. The first is that the proof does not show what sum was received by the executor upon making this sale. He did not, of course, receive more than the face of the debts sold, and it is highly improbable that he received that

Kirby's Dig. §§ 3821 3822, relating to discharge of guardian on exhibition of receipt of ward and notice of the filing of same, have no application to form of receipt of a ward in a amount. They may have brought only a triproceeding by a ward against his guardian, which was treated by both as a final accounting, and no notice was necessary to introduce a receipt in evidence to prove that the ward had received what was due him.

5. GUARDIAN AND WARD 70- PAYMENTS
DURING INFANCY-RATIFICATION.
Where a ward after attaining his majority,
gives a receipt in full, he ratifies payments made

fling sum, and it would be highly improper and unjust to charge the executor with more than he received at the sale. A second and sufficient reason for not charging the guardian with this item is that the executor, as such, could not be required to settle his accounts as executor in a proceeding against

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