Berry v. Jones

Cook, J., delivered the opinion of the court. Appellees were plaintiffs below in a suit to recover from appellant his proportion of the costs of a division fence between his land and that of plaintiffs. Plaintiffs’ evidence goes to show that, before the fence was built, [121] plaintiffs and defendant orally agreed to share the cost of the fence. The jury rendered its verdict for plaintiffs, and judgment was entered accordingly. From this judgment, this appeal is prosecuted. We do not think that the contention of appellant that he was entitled to a peremptory instruction is maintainable. The evidence was conflicting, and the jury accepted plaintiffs ’ verson of the .contract,-' and this court is not authorized to overrule the jury on the facts. Section 4775, Code of 1906, in paragraph “c” provides that “an action shall not be brought whereby to charge a defendant . . . upon any contract for the sale of lands, tenements, or hereditaments-, or the making of any lease thereof for a longer term than one year, . . . unless . . . the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith. ” It is contended that a contract or agreement by the owners of adjoining lands to erect a fence on the dividing line, and to share the costs thereof, is “ a contract for the sale of lands,” and such contract must be in writing and signed by the defendant before an action can be maintained thereon against the promisor. This point seems never to have been presented to this court, but has been considered by the courts of some' of our sister states. The rule is thus stated in volume 19, page 471, of Cyc. : “According to the weight of authority, parol evidence as to partition fences is binding upon the parties thereto.” In Guyer v. Anson Stratton, 29 Conn. 421, it is said: “It is worthy of notice also that although this subject of fences, of so great interest to our people, has engaged the attention of our legislators .ever since the first settlement of the country, no statute has in terms made it necessary that a division agreed to and acted upon by the parties themselves, should be written or recorded. . . . The statute of frauds seems to have no application. An agree [122] ment between two parties charged by law with a common burden, as to the particular portion of it which each of them shall bear, is not a contract or agreement for the sale of lands, tenements or hereditaments, or any interest in or concerning them.” It would seem, without authority, that appellant’s application of the statute of frauds is strained, and certainly not within the letter of the statute. However, the same point has been raised in several states and adjudicated by the appellate courts. See Ivins v. Ackerson, 38 N. J. Law, 220; Baynes v. Chastain, 68 Ind. 376; Bills v. Belknap, 38 Iowa, 225. We think the following decisions of this court put us in line with the reasoning adopted by the courts in the cases just cited, viz.: Natchez v. Vanderveld, 31 Miss. 706, 66 Am. Dec. 581; Archer v. Helm, 69 Miss. 730, 11 South. 3; Pipes v. Buckner, 51 Miss. 848. After plaintiff had given his version of the facts, and defendant had testified in direct variance, defendant offered witnesses to prove his general character for truth and veracity. The trial court sustained an objection to this evidence, and this action of the court is assigned as error. So far as our investigation has disclosed, this point has not been before this court in the past, and for this reason we will announce the rule for the future guidance of trial courts. The leading test-writers are in accord with the trial court’s view of the law, and announce as a general rule that proof of good character is not pertinent in civil cases. Jones on Evidence, page 177; Wig-more on Evidence, volume 1, page 134. That this is the correct rule, and is approved by the great weight of authority, is certain. Etting v. Bank, 11 Wheat. (U. S.) 59, 73, 6 L. Ed. 419. Lastly, it is suggested that defendant, being a poor gentleman of color, and a native, and plaintiffs being bankers, and not having had the advantage of being born in Mississippi, the jury were, therefore, wrong when they decided in in favor of plaintiffs. We are bound to as [123] sume that the jury fairly and car.efully considered this phase of the case, and no doubt they presumed that, had the plaintiffs been consulted about the state of their birth, they would have undoubtedly selected this state; but, inasmuch as they were not given this preference, it would be unjust to handicap them with a mishap for which they are- not responsible. Affirmed.