Garner v. Broom
| Decision Date | 07 December 1931 |
| Docket Number | 29638 |
| Citation | 138 So. 336,161 Miss. 734 |
| Court | Mississippi Supreme Court |
| Parties | GARNER v. BROOM |
1. APPEAL AND ERROR.
In replevin action in justice of peace court to recover horse worth $50, in which defendant filed counterclaim for $185 for wrongful suing out of writ, counterclaim gave Supreme Court jurisdiction of appeal (Constitution 1890, section 171; Code 1930, section 67).
2. FRAUDS, STATUTE OF. Oral contract for exchange of horses held within Statute of Frauds (Code. 1930, section 3347).
Plaintiff agreed, as part of consideration for exchange, that defendant might retain boot which plaintiff had paid, including $10 note which plaintiff had given on former exchange, and in addition that plaintiff would pay $10 more, but there was no memorandum in writing of agreement signed by either party, no money was actually paid at time, and exchange of animals did not take place but was to take place in future.
APPEAL from circuit court of Marion county HON. J. Q. LANGSTON Judge.
Action by J. C. Broom against Jim Garner. From a judgment for plaintiff, defendant appeals, and plaintiff moves to dismiss the appeal. Motion to dismiss appeal denied, and judgment reversed and cause remanded.
Reversed and remanded.
T. B. Davis, of Columbia, for appellant.
The court below erred in granting the plaintiff the following instruction: "The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence that plaintiff and defendant entered into an agreement that plaintiff was to let defendant retain the ten dollars already paid, to retain the note for ten dollars which was to be paid later, and that a further sum of ten dollars was to be paid later and that plaintiff was to deliver to defendant the black horse in question and was to receive therefor a light bay mare now in suit and that plaintiff offered to comply with terms of said agreement by carrying out the same as agreed then sale or contract was complete and plaintiff was entitled to the light bay mare, and you should return a verdict for the plaintiff."
This instruction is erroneous because it ignores the defendant's principal defense in that it ignores his contention that the horse to be delivered to him should be in as good condition as it was when he let Broom have it. It tells the jury that if certain things alleged to have happened in the superintendent's office were true then the trade was complete and they should find for Broom without taking into account this defense and the defense made to the effect that Broom failed to pay the ten dollars.
Fursey v. Hassen, 45 Miss. 133; Nicholls v. State, 46 Miss. 281; Levy v. Gray, 56 Miss. 318; Reid v. Yazoo & C. R. Co., 94 Miss. 639, 47 So. 670; Johnson v. Stone, 69 Miss. 826, 13 So. 858; Yazoo & C. R. Co. v. Bruce, 54 So. 241; Owen v. Anderson, 119 Miss. 66, 80 So. 386.
It is improper to give contradictory charges to the jury.
Miss. Cent. R. R. Co. v. Miller, 40 Miss. 45; Illinois Cent. R. Co. v. McGowan, 92 Miss. 603, 46 So. 55.
Section 67, Code 1930, provides for appeals to the Supreme Court in cases originating in a justice of the peace court.
The two cases cited by the appellee on his motion to dismiss this appeal do not, as we see it, touch the question involved.
Under our law the defendant may recover damages for the wrongful suing out of a writ of replevin by simply giving notice of such damages.
The defendant, Garner, gave notice of damages to the extent of one hundred eighty-five dollars and made proof thereof, so that the amount in controversy was the damages plus the value of the horse. Our Supreme Court passed upon the identical question involved in this motion in the case of Crooke v. Deas & Duke, reported in 146 Miss. 260, 111 So. 293.
Sebe Dale, of Columbia, for appellee.
Appellant is relying on claim for damages to confer jurisdiction and says that Gresham v. Kennedy, 128 Miss. 469, is not in point, and that Crooke v. Deas & Duke, 146 Miss. 260, is in point. Gresham v. Kennedy, was a suit in replevin. Crooke v. Deas & Duke, was a suit in attachment. It seems that the case at bar being a suit in replevin Gresham v. Kennedy should be more persuasive.
There is an underlying and fundamental difference or rather several differences between a suit in attachment and a suit in replevin. A consideration of these differences will show why a claim for damages in attachment may be a counter-suit and not so in replevin.
If claim for damages in replevin suit was a separate and distinct counter-suit, such as to control or confer jurisdiction, same would be true as stated by this court in Jackson v. Whitfield, 51 Miss. 202. "If the interest, costs and special damages allowed by statute upon recovery in certain cases are taken to constitute a part of the amount in controversy, it will be here that the jurisdiction under consideration would be wholly uncertain, and dependent upon mere incidents to the real subject matter in litigation."
Kiernan v. Germaine, 62 Miss. 75.
In the case at bar it is certain that the matter complained of is the horse of the value of fifty dollars. Ward v. Scott, 57 Miss. 826, and Switzer v. Benny, 94 Miss. 209, bear out this contention. If it were otherwise there would be no suit in replevin which could not be appealed to the Supreme Court for always an aggrieved party claims damages exceeding fifty dollars even though the subject matter, the property, is valued no more than fifteen or twenty dollars.
Damages being only incidental to the issue in replevin jurisdiction is determined by the value of the property, the right to possession of which, is in controversy.
The appellee brought this action of replevin in the court of a justice of the peace of Marion county to recover of appellant a light bay mare of the value of fifty dollars. Appellant pleaded not guilty, and gave notice that on the trial he would claim against appellee actual and punitive damages in the sum of one hundred eighty-five dollars for the wrongful suing out of the writ of replevin. There was a trial, resulting in a judgment in appellee's favor, from which judgment appellant appealed to the circuit court, where there was a trial de novo, again resulting in a judgment for appellee, from which judgment appellant prosecutes this appeal.
The cause is here on motion of appellee to dismiss the appeal, on the ground that this court is without jurisdiction of the appeal, and also on its merits.
The case grew out of the barter and exchange of horses between the parties. Appellee owned a light bay mare, and appellant owned a black horse. They exchanged one for the other, appellee agreeing to pay appellant twenty dollars as boot, of which ten dollars was paid in cash, and appellee gave his note for ten dollars to appellant, payable at a future date. Later they agreed to re-exchange the same horses upon the following terms: Appellant was to retain the ten dollars paid him by appellee on the former exchange, and the latter was to pay the ten dollar note which he had executed and delivered to appellant; and, in addition, ten dollars more, to be paid at a future date.
Appellee testified that there were no other conditions to the re-exchange of the horses; while appellant testified that the re-exchange was to be upon condition that the horse owned by appellee should be in as good condition as when the first exchange was made. There was no memorandum in writing evidencing the re-exchange, and at the time there was no redelivery of either mare or horse--the actual exchange was to take place at a later day. Appellee accordingly tendered back to appellant the black horse, and demanded the return by appellant of the mare, which appellant declined to do, according to his testimony, upon the ground that the horse was not in as good condition as when the first exchange took place.
As stated, the appellee brought replevin against appellant for the mare, which is shown by the record to be worth fifty dollars. That value was fixed in the affidavit for replevin, and in the writ, and the return of the officer thereon. The mare was seized by the officer under the writ of replevin, and appellee took possession of it under a forthcoming bond.
We will consider first the appellee's motion to dismiss the appeal, upon the ground that the amount involved is not sufficient to give the Supreme Court jurisdiction.
Section 171 of the Constitution provides, among other things, that the jurisdiction of justices of the peace shall extend to causes in which the principal amount in controversy shall not exceed the sum of two hundred dollars. Section 67 of the Code of 1930 deals with appeals from judgments of...
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