Anderson v. First Securities Co. of Longview, Texas

• Decision Date: 08 May 1939
• Docket Number: 33699
• Citation: 188 So. 548,185 Miss. 500
• Court: Mississippi Supreme Court
• Parties: ANDERSON v. FIRST SECURITIES CO. OF LONGVIEW, TEXAS

188 So. 548

185 Miss. 500

ANDERSON v. FIRST SECURITIES CO. OF LONGVIEW, TEXAS

No. 33699

Supreme Court of Mississippi, Division B

May 8, 1939

APPEAL from circuit court of Jones county HON. W. J. PACK, Judge.

Action on notes by First Securities Company of Longview, Texas against A. D. Anderson. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

F. B Collins, of Laurel, for appellant.

We have always understood where there was no conflict in the testimony; that is, in the face of undisputed positive testimony on a certain issue that it is the duty of the court to direct a verdict upon that issue. In this case there was no conflict in the positive testimony offered by appellant to the effect that the appellee guaranteed the bottles to be first class; that they were not first class; and that appellant did not discover that they were not first class until after he executed the renewal notes; and that appellant then refused to pay the balance due on the purchase price and further, that appellant paid appellee all that the bottles were worth. Appellee introduced not one word or syllable of testimony to contradict this. If appellant was not entitled to a directed verdict under this state of the case then we have misconstrued the holding of this court.

Board of Mississippi Levee Com. v. Montgomery, 110 So. 845; Thigpen v. Miss. Central R. R. Co., 32 Miss. 347; Carrere v. Jackson, 115 So. 196, 149 Miss. 105; M. & O. R. R. Co. v. Clay, 125 So. 819, 156 Miss. 463; Walters v. State, 122 So. 189.

Beard & Pack, of laurel, for appellee.

Let it be borne in mind that the burden was upon appellant, who raised the affirmative issue, to show that there was a breach of warranty whereby the consideration failed. Instead of his evidence meeting this burden, it showed that, if there was such a breach of warranty, appellant had waived and precluded himself from asserting such defense by executing the renewal notes after he knew, or by the exercise of ordinary care should have known of the alleged breach of warranty.

If from the evidence the questions in issue might be reasonably answered either in the affirmative or the negative, then such questions are for the jury.

Sovereign Camp, W. O. W., v. Banks, 177 Miss. 279, 170 So. 654; Pitts v. Miss. Power & Light Co., 177 Miss. 288, 170 So. 817.

We confidently submit that this court will not override the verdict of the jury. We have in this case the purchase by a local concern of a carload of bottles from a corporation in Texas. We have a payment for a portion of the bottles, a request from the buyer for additional time to pay the remainder, the seller's consent to that request, and the buyer's execution of renewal notes. We have a default in the payment of these notes. We have no complaint from the buyer as to the quality of the bottles until the seller has filed his suit in court. During all these months they have been used and commingled with other bottles. It is too late now for the seller or his attorneys to examine them to determine if they are defective as alleged. By delaying until he is sued before asserting they were defective, the buyer has precluded the seller from learning their true condition, has effectually prevented his ever being able to present to a jury its evidence as to their quality. In instructions for both appellant and appellee, the jury was told that the buyer may not now raise the question to the quality of the bottles unless the jury should find that he did not know of their alleged inferiority before executing the renewal notes or could not have known by exercise of ordinary care.

The jury did not so find in this case. On the contrary, it found from the testimony of appellant himself and his own employees that appellant knew of the alleged defects or by ordinary care should have known.

OPINION

Ethridge, P. J.

A. D. Anderson, trading or doing business under the trade name, Nehi Bottling Company, ordered a carload of bottles from the First Securities Company, of Longview, Texas, to be used in bottling his products. This purchase seems to have been made in June, 1934, the bottles to be guaranteed of first quality, and to be delivered f. o. b. cars at Ellisville, Mississippi. The carload of bottles arrived, the cash payment of $ 275 was made, and three obligations or acceptances for $ 133.33 were executed, due, one in two months, one in three months, and one in four months from date.

On the arrival of the bottles at Ellisville an employe of Anderson's, in charge of the bottling business, secured the assistance of a number of boys in unloading the bottles some of which were placed in the back of the plant, stacked, not in cases, but in the manner in which they were shipped in the cars, stacked on each other, instead of in cartons or boxes. The Nehi plant at Ellisville used some of the bottles when they were received, and no complaint of...