BEFORE HAWKINS, P.J., PRATHER AND ROBERTSON, JJ.
HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
Rainbow Rental and Fishing Tools, Inc., sued Delta Underground Storage, Inc., in the circuit court of Forrest County upon an open account and for attorney's fees. Rainbow recovered only a portion of the account sued upon, and the circuit judge entered an order awarding attorney's fees to Delta.
Rainbow has appealed, arguing Delta failed to file the proper counter-affidavit to its itemized account, and also that it, not Delta, was entitled to attorney's fees under Miss. Code Ann. 11-53-81 (1980).
We find no error in Rainbow's assignment of error as to the counter-affidavit of Delta's, nor any error in the court's refusal to award Rainbow attorney's fees under Miss. Code. Ann. 11-53-81 (1980). We do find, however, that the court erred in the order awarding Delta attorney's fees under this statute, and reverse and render on this order.
Delta was involved in the underground storage of propane gas. Wells were drilled into the underground salt deposits, and the salt was washed out to form storage cavities in which the gas was stored. Delta had been in this business for approximately 10 years. Rainbow was in the oil field service business, primarily dealing with "fishing" *fn1 and rental tools.
Sometime in early June of 1985, a section of drilling pipe lodged in an incomplete well that Delta was having drilled. The company in charge of drilling the well for Delta was Challenger Well Services. Hugh Burgin, the manager of Challenger, recommended Rainbow to Roger Wittig, Delta's company man in charge of overseeing the drilling of the well. Wittig contacted Rainbow to perform the fishing job.
There was no discussion between the parties concerning payment for Rainbow's tools in the event of their loss or damage while engaged in the operation. Wittig did not ask for a price book, and Rainbow did not supply him with one. This was Wittig's first "fishing expedition."
On June 8, 1985, Rainbow's personnel went to Delta's well site and for several hours attempted to fish the lodged
pipe from the well. Wayne Rowell was the fishing tool supervisor on the site for Rainbow. Following these unsuccessful attempts at fishing the pipe out of the well casing, Rowell consulted with Wittig about what to do next. Wittig said, "Let's run the tool to the bottom of the hole." These attempts to remove the pipe were also unsuccessful. As Rowell and his crew "reeled in" the fishing line, they discovered that some of the tools on the line were missing or damaged.
Wittig asked Rowell to wait while he called Solon Scott, the president of Delta, to ask what he should do in this situation. Scott and Wittig decided the proper course of action was to discontinue the fishing operation and write the drilling pipe off as lost. Wittig related this decision to Rowell. The two did not discuss any further fishing to retrieve Rainbow's lost tools.
Before leaving the Delta well site, Rowell submitted a bill for Wittig to sign. Prices for rental of the tools, the fishing service, and the wages for the crew were filled in on the bill. The lost tools were also itemized on the bill with the word "sale" printed out beside them, but there were no prices given. Wittig totaled up the figures that were included in the itemized bill. The total came to $5,050. Wittig testified at trial that it was his understanding that it was not determined at that point who was at fault for losing the tools. He said Rowell told him that he may have to pay for lost tools. Wittig signed the bill and Rainbow loaded their tools and left the site.
Rainbow submitted its charges to Delta by a two-page invoice. Page 1 reflected the rental of tools and charges for personnel conducting the fishing operation. It totaled $5,529. Page 2 reflected charges for replacement of tools lost, repair of damaged tools and related transportation charges, totaling approximately $28,000.
Scott, upon receiving this bill, telephoned Roy Wyrick, the president of Rainbow to protest the charges for lost and destroyed tools. He offered to pay $5,050 for rental on the tools and services performed by Rainbow's personnel in the fishing operation. Rainbow refused Delta's offer of payment and sued Delta for both rental charges/personnel and tool replacement/repair costs. The total amount sought in this action upon open account was the sum of $32,357.98 plus 1.5% per month interest and reasonable attorney's fees and court costs. The total demand including interest being $39,152.96.
Delta filed their answer on June 13, 1986, and in
Defendants admit that Delta Underground Storage, Inc., acting by and through its agent and employee, Roger Wittig, on or about June 8, 1985, ordered and received from Plaintiff certain goods and services, upon open account, but deny the ...