Cartwright-Caps Co. v. Fischel & Kaufman

• Citation: 74 So. 278,113 Miss. 359
• Decision Date: 05 March 1917
• Docket Number: 18875
• Parties: CARTWRIGHT-CAPS CO. v. FISCHEL & KAUFMAN
• Court: United States State Supreme Court of Mississippi

74 So. 278

113 Miss. 359

CARTWRIGHT-CAPS CO. v. FISCHEL & KAUFMAN

No. 18875

Supreme Court of Mississippi

March 5, 1917

Division B

APPEAL from the chancery court of Warren county, HON. E. N. THOMAS Chancellor.

Suit by Fischel & Kaufman against the Cartwright-Caps Company. From a decree overruling its demurrer, defendants were granted an appeal.

The facts are fully stated in the opinion of the court.

Case reversed and remanded.

Hirsh Dent & Landau, for appellant.

Brunini Hirsh & Griffith, for appellees.

OPINION

ETHRIDGE, J.

Fischel & Kaufman, a partnership composed of Jewish citizens doing business in Vicksburg, brings this suit in the chancery court for an alleged libel contained in certain correspondence written by the appellant to the appellees. It seems that the appellees are engaged in the laundry business and purchased certain machinery from the appellants known as a "water softening outfit," and the correspondence grew out of the transactions regarding the purchase and use of this machinery. It is alleged that on or about the 4th of November the appellant mailed to the appellees a letter which, omitting the immaterial parts, reads as follows:

"We cannot help but feel that you are exercising the prerogative of a cheap Jew, and in order to get these notes paid and forget them we are sending draft amounting to four hundred six dollars and forty-two cents for notes, less W. H. Bruser invoice of forty-three dollars and fifty-eight, as per your letter of October 19th. Please honor same.

"Yours very truly, CARTWRIGHT-CAPS CO.

"Per CHAPLIN A. CARTWRIGHT, President.

"P. S.--The above draft will be presented on November 13th, the day the last note is due."

There was another letter, alleged to have preceded this letter, and marked "Exhibit A" to and made a part of the bill, as follows:

"Chicago Oct. 23, 1914.

"Messrs. Fischel & Kaufman, Prop. Pearl Laundry, Vicksburg, Miss.--Gentlemen: We are at a loss to understand your attitude regarding the payment of your notes, and also that part of your letter which reads as follows: 'That after plant was installed, gave us no satisfaction'--especially after receiving your letter in which you state how delighted you were, and in addition having been personally told of the satisfactory results you were obtaining. Further, we do not see why, if you want to be square, you should ask us to send these notes for collection. Your contract called for this money in Chicago funds. From this letter you evidently want to ignore our bill for the castings and room and board of our man while making the change in your filter. It seems that no dependence whatever can be put in you. We have your several promises of paying, yet you do not honor our drafts when sent to the bank. We feel that you are very unjust and unkind in trying to hold us up for this tank, for, as we have stated several times, we do not feel that our equipment was at fault, and the suggestions that have been made were made to you with a view of giving you something which would in a way protect you against your own carelessness, if you did neglect it or fail to take care of it. The original filter which was put in the tank--had the water been kept away from the foundations--would have given you perfect filteration, but in the condition in which the writer found your tank, and the water still running around the foundations, the chances are there wasn't a tight joint in the whole filter box. Yet in one of your letters you state that at the expense of a very few dollars you could have repaired that, but instead of acting on your own initiative you were writing letters of complaint in here and holding up payment of your notes. Please tell us what is to be done with such people. As your Mr. Kaufman stated to the writer, and also wrote to this office, how easily and how cheaply the repairs could have been made, we are at a loss to understand why you permitted our Mr. Aagaard to make any change whatever. The Cartwright-Caps Company stand back of every machine they put out, but we cannot anticipate nor forestall carelessness and neglect. As stated in our previous letters, we do not feel obligated for expense you were put to for installing the auxiliary tank, and feel you are using your nerve in presuming to hold us up for this money. Until you pay your notes, some of which are long past due, and advise us of your intentions regarding the bill for castings and Mr. Aagaard's expense, we cannot enter into any discussion in regards to allowances.

Yours very truly,

"CARTWRIGHT-CAPS CO.

"Per CHAPLIN A....