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HARDWARE, FURNITURE AND APPLIANCE, COMPANY, INC. v. STAN BURGESS

NOVEMBER 13, 1985

HARDWARE, FURNITURE AND APPLIANCE, COMPANY, INC.
v.
STAN BURGESS



Cleve McDowell, Drew, for appellate.

Cliff Heaton , Clarksdale, for appellee.

[THIS CASE NOT DESIGNATED FOR PUBLICATION]

AFFIRMED ON DIRECT APPEAL AND REVERSED AND RENDERED ON CROSS-APPEAL

 PER CURIAM OPINION

 Hardware, Furniture and Appliance Company, Inc. filed suit on open account demanding judgment of Stan Burgess for the sum of $863.87, together with reasonable attorney's fees in accordance with the provisions of Miss. Code Ann. 11-53-81 (Supp. 1984). Stan Burgess filed an answer admitting that he purchased the items from plaintiff but denying any indebtedness to it by reason of a counterclaim in excess of $2,000.00 as compensation for services rendered. Burgess, likewise asked for reasonable attorney's fees pursuant to the same statute.

 The case went to trial and the jury returned the following verdict :" We the jury find for the defendant-Stan Burgess & Assess Damages at $-0- "and" We want neither plaintiff or defendant to receive any money or damages. "

 On appeal, Hardware, Furniture & Appliance Company, Inc. contends," The verdict of the jury is against the overwhelming weight of the evidence and is contrary to law. "Stan Burgess cross-appealed and contends," The trial judge abused his discretion and was manifestly wrong as a matter of law in refusing to grant attorney's fees unto the Appellee, in that Appellee prevailed on an open account lawsuit filed by the Appellant. "

 Stan Burgess is a refrigeration repair specialist who was employed by appellant on a part-time basis at the rate of $10.00 per hour for the purpose of repairing appliances. During the course of employment, Burgess admittedly purchased certain home appliances and was given credit for a limited number of hours of work. Burgess testified that credit for the number of hours of actual work would have exceeded the amount of the debt. Thus a genuine issue of fact was presented for consideration by the jury and was resolved against appellant. The verdict of the jury is not contrary to the overwhelming weight of the evidence or contrary to law.

 Following the return of the verdict quoted above the appellee presented evidence in support of his claim for reasonable attorney's fees, and the following was incorporated

 in the final judgment in relation thereto:

 The Court further being of the opinion that the Defendant is not entitled to reasonable attorney's fees pursuant to Section 11-53-81, Mississippi Code of 1972, as Amended, and the Court having considered testimony and other evidence offered in open court regarding the fees of the Defendant's attorneys Neblett, Bobo, Chapman, and Heaton, and the expenses incurred by said attorneys and the attorneys having stipulated that the sum of $1,524.00 would be reasonable for the services of the above mentioned attorneys had the Court felt that attorney's fees were recoverable by the Defendant; . . . (emphasis added.)

 Section 11-53-81 provides that when a debtor fails to pay an open account for thirty days after written demand and the creditor prevails in a subsequent law suit, the plaintiff may recover reasonable attorney's fees. The statute goes on to provide that" If that person sued on the open account shall prevail in the suit, he shall be entitled to reasonable attorney's fees to be set by the judge. "

 Under the counter-claim, Burgess clearly recovered an amount sufficient to completely defeat the suit on open account. Under the clear wording of the statute, he is entitled to recover the amount stipulated by the attorney's to be reasonable. Burgess' claim for additional attorney's fees in this Court is found to be without merit.

 The judgment of the trial court is affirmed on direct appeal and reversed on cross-appeal and judgment will be rendered in this Court in favor of Stan Burgess for the amount of attorney's fees stipulated to be reasonable by the attorneys of record. Request ...


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