Boyle Gin Co. v. W. F. Moody & Co

Citation188 Miss. 44,193 So. 917
Decision Date26 February 1940
Docket Number34010
PartiesBOYLE GIN CO. et al. v. W. F. MOODY & CO
CourtMississippi Supreme Court

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Action by W. F. Moody & Co. against the Boyle Gin Company and others to recover balance of purchase money claimed to be due for an engine. Judgment for plaintiff, and defendants appeal. Affirmed.

Affirmed.

Green &amp Green, of Jackson, for appellants.

Our position, simply stated, is that the trial court erred in entering judgment non obstante veredicto, because under the practice in this state, it is improper. We are aware that in certain cases it is available, but have found no authority in the statutes or decisions for such action when the defendant presents a good defense (here a set-off), even though a plea of confession and avoidance has been filed.

Garrett v. Beaumont, 24 Miss. 377, 381.

The doctrine stated in the Garrett case is to the effect that if a verdict for the defendant on his pleas would not give him a right to a judgment then judgment non obstante veredicto would be proper, but in this case the defenses urged by way of set-off are good, or so the jury determined, and hence the trial court must have erred.

With deference the court below misunderstood the effect of the agreement as to the minimum damages. The learned judge terms it a plea of confession and avoidance, and concludes that it is necessarily inconsistent with the validity of the contract under the general issue plea. We do not believe that the plea of set-off is inconsistent under our liberal code sections or that it was proper for the court to hold the defense insufficient in law.

11 Ency. Plead. and Practice, 915; Neely v. Allis-Chalmers Mfg. Co., 174 Miss. 519, 165 So. 114.

The trial court erred in entering judgment for appellee because on prior appeal this court established the law of the case. In reversing on the prior appeal this court said: "We cannot say from the record that the evidence of ratification is without conflict; therefore it was a question for the jury." 177 So. 655.

We insist that that statement became the law of the case and the trial judge was bound thereby. A general statement of the controlling effect of such an utterance as this by the appellate court is found in 5 C. J. S. 1499, Sec. 1964.

Commercial Union Fire Ins. Co. v. Kelly, 115 So. 400; Dickerson v. Western Union Tel. & Tel. Co., 114 Miss. 115, 74 So. 779; 4 C. J. 1213; Carlson v. Northern Pac. R. R. Co., 281 P. 913; Davis, Agent, v. M. A Pharr Cotton Co. (Ga.), 122 S.E. 623; L. & N. R. Co v. Cornett's Admr. (Ky.), 35 S.W.2d 10; Hutcherson v. Towne, 241 P. 917; Howland v. Fenner, 252 P. 962.

It is reversible error for the trial court to ignore this law of the case.

5 C. J. S. 1557, Sec. 1994; 4 C. J. 1243, notes 68 & 69.

We insist that if there was sufficient evidence to take the case to the jury on the question of ratification in the first trial, there still is, and it necessarily follows that the trial court erred in granting judgment non obstante veredicto for appellee. Particularly is this true where the evidence on the two trials is substantially the same. As we pointed out above, appellee introduced the entire record of the testimony of their witnesses on the first trial to establish their case in the second trial. Obviously, their evidence is the same in both trials, and, being so, it is amazing that the trial judge could hold in the first trial that ratification was not an issue, and then in the second trial return judgment for appellee predicated upon a holding that the illegal contract was ratified as a matter of law. So we say that under the line of cases cited above the law of the case has been established and the court below erred in failing to submit the question of ratification to the jury by deciding it himself as a matter of law.

J. S. Penn, one of the appellants, never ratified the illegal contract.

Lotterhos & Travis and Vardaman S. Dunn, all of Jackson, for appellee.

We respectfully submit on cross-appeal that the trial court erred in refusing appellee's requested peremptory instructions at the conclusion of the testimony, and therefore that a judgment should be entered by this court in favor of appellee and against the respective appellants for the minimum liquidated amounts.

W. F. Moody & Co., Inc., v. Boyle Gin Co., Inc., 180 Miss. 522, 177 So. 654; McKinney v. Demby, 44 Ark. 74; Planters' Fire Ins. Co. v. Ford, 106 Ark. 568, 153 S.W. 810, 44 L. R. A. (N. S.) 289; McElhannon v. Coffman, 173 Ark. 60, 292 S.W. 393; Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783.

We respectfully submit in answer to the direct appeal that the judgment, notwithstanding the verdict of the jury, was proper from a procedural standpoint, but, if mistaken in this, appellee is entitled to a judgment on its cross-appeal on the grounds stated under point one of the argument.

Dement v. Summer, 175 Miss. 290, 165 So. 791; Y. & M. V. R. Co v. Wallace, 90 Miss. 609, 43 So. 469; Hairston v. Montgomery, 102 Miss. 364, 59 So. 793; Schaffer v. Deemer Mfg. Co., 108 Miss. 257, 66 So. 736; Edwards v. Y. & M. V. R. Co., 112 Miss. 791, 73 So. 789; Gooch v. Coleman, 143 Miss. 447, 109 So. 18; Banfill v. Byrd, 122 Miss....

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3 cases
  • Illinois Cent. R. Co., Inc. v. Paxton
    • United States
    • United States State Supreme Court of Mississippi
    • February 26, 1940
  • Floyd v. Lusk, 44058
    • United States
    • United States State Supreme Court of Mississippi
    • September 27, 1966
    ...not constitute grounds for reversal where a correct result was reached by the final judgment of the court. Boyle Gin Co. v. W. F. Moody & Co., 188 Miss. 44, 193 So. 917 (1940). In the case now before us, the trial court should have sustained the motion of the defendant requesting a directed......
  • Spann v. Gulley
    • United States
    • United States State Supreme Court of Mississippi
    • March 17, 1958
    ...for the sum of $1,350, and the court should have sustained the plaintiff's motion for a judgment for that amount. Boyle Gin Co. v. W. F. Moody & Co., 188 Miss. 44, 193 So. 917; Gardner v. Reed, 207 Miss. 306, 42 So.2d 206; Palmer v. Garner, 226 Miss. 123, 83 So.2d 800; City of Indianola, fo......

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