Gilmore Puckett Grocery Co. v. J. Lindsey Wells Co.

• Citation: 60 So. 580,103 Miss. 468
• Decision Date: 25 November 1912
• Docket Number: 15,239
• Court: United States State Supreme Court of Mississippi
• Parties: GILMORE PUCKETT GROCERY CO. v. J. LINDSEY WELLS COMPANY

60 So. 580

103 Miss. 468

GILMORE PUCKETT GROCERY CO. v. J. LINDSEY WELLS COMPANY

No. 15,239

Supreme Court of Mississippi

November 25, 1912

APPEAL from the chancery court of Monroe county, HON. J. Q. ROBINS Chancellor.

Suit by the Gilmore Pucket Grocery Company against the J. Lindsey Wells Company. From a judgment for defendant, plaintiff appeals.

The Gilmore Puckett Grocery Company purchased of the J. Lindsey Wells Company certain cottonseed meal, which was recommended as an excellent feed. The purchaser claimed that it was not up to representations in that it was a mixture of meal and hulls, and brought suit in the justice court for the difference between its real value and the purchase price, and recovered a judgment and collected same. While that suit was pending in the justice court, the state chemist seized the meal, condemned it, and sold it.

Afterwards appellant filed this attachment suit in chancery against the J. Lindsey Wells Company, a nonresident, and attached certain money found in a local bank. The prayer of the bill is for the penalty (quadruple the price received) as prescribed by section 2256 of the Code, which is as follows: "Every manufacturer, owner, or agent, selling any spurious or adulterated fertilizer, or any fertilizer which shall lack materially in a valuable element represented to be therein shall be liable to the person injured for quadruple the price received or agreed upon for the article sold." Section 2258 gives the state chemist authority to condemn and seize fraudulent fertilizers. Section 2244, part of the chapter on "Fertilizers" defines fertilizers as follows "The term 'fertilizer,' as used herein, includes all substances, chemicals, and compounds commonly known as commercial fertilizers, whether natural or artificial products, castor pomace, cottonseed meal, and all manures except animal excrement, but does not include cottonseed." Section 1579, being found under the chapter on "Definitions," defines a fertilizer to be as follows: "All substances, chemicals and compounds commonly known as commercial fertilizers and all manures whether natural or artificial products, except animal excrement, cottonseed and unmixed cottonseed products."

The appellee claims that he is not liable for the penalty provided by section 2256, for the reason that the product he sold is not a fertilizer, but feed stuff, and is not required to be analyzed or tagged, as it was "an unmixed cottonseed product," and fell within the exception set out in section 1579. The court found for appellee, basing its finding upon the fact that appellant had elected to sue in the justice court for the actual damage, and was therefore estopped from claiming the penalty in another suit.

Affirmed.

Leftwich & Tubb, for appellant.

As touching the construction of our statutes, they must all be read together and in the light of reason, and since all of them are in the interest of the public health of men and animals and against frauds they must be construed favorably to advance the remedy. Black on Interpretation of Laws, p. 313. The first statute on the subject is found in the Code of 1892, section 2065, where the term "fertilizer" is defined so as to include cottonseed and unmixed cottonseed products whether natural or artificial. The first legislature that dealth with this Code section was by the Sheet Acts of 1896, page 77, by which "castor pomace" was added to the products that should be called fertilizers. By the act of the legislature of 1904, Sheet Acts page 162, we have the first attempt at the classification of fertilizers, and by that classification there were two classes--high grade, which must contain phosphoric acid and potash as follows: ten per cent of available phosphoric acid, one and sixty-five hundredths per cent of nitrogen and two per cent of potash. The standard grade had the same constituents save that there must be eight per cent of available phosphoric acid, there being no offgrade. This act of 1904 was amended and became our chapter 51 of the Code of 1906. It must be plain that the reason that the legislature provided that all cottonseed meal should be classed and tagged as fertilizers was to prevent fraud and deceit, for the lawmakers saw that whenever fraud and deceit was used by the manufacturer and seller, of which this instant case is a palpable example, the wrongdoers would at once take refuge in the claim that they were dealing with feed stuffs and not with fertilizers, and to cut off this pretext the law was so written. The Laws of 1908, page 98, chapter 107, deal for the first time with commercial feed stuffs. The title of that act is, "An act to regulate the sale, inspection, and analysis of commercial feeding stuffs sold or offered for sale or use in the state of Mississippi." Section 14 of that act does not repeal section 2244 of our fertilizer chapter of the Code of 1906 nor does it in any way affect it and was never so intended. The fertilizer chapter now stands as it has always stood before the act of 1908 was passed, but whether it does or not, that chapter cannot affect this cause of action because it accrued before the passage of the act which was approved March 21, 1908. Since our state chemist, Dr. W. F. Hand, the head of the state department of chemistry, is more familiar with the history of the legislation along these lines than any other person in the state, and being a public official, we addressed to him a letter asking that he recite the history of fertilizer legislation and also give the department construction of the different acts. His reply is found in his letter to us under date of December 12, 1911, which is here copied in full as follows:

MISSISSIPPI AGRICULTURAL AND MECHANICAL COLLEGE

DEPARTMENT OF CHEMISTRY, AGRICULTURAL COLLEGE, MISSISSIPPI.

W. F. Hand, Ph.D., State Chemist.

December 12, 1911.

Messrs. LEFTWICH & TUBB,

Aberdeen, Miss.

Dear Sirs:

We acknowledge receipt of your letter of the 9th referring to the case of the Gilmore Puckett Grocery Company versus the J. Lindsay Wells Company.

The inspection of fertilizers in this state has been maintained since 1892, and of cottonseed meal since 1906. The fertilizer law of 1892 was amended by the legislature in 1906 to include the inspection of cottonseed meal. In defining what substance shall be included by the term "fertilizer," section 1579 of the Code of 1906 exempts cottonseed products, but a reference is contained in this same section to section 2244 of the Code of 1906, which section specifically declares that cottonseed meal is a "fertilizer" as used within the meaning of the act. The fertilizer law of 1892 was amended in 1906, as stated before, and by act of the legislature at that time cottonseed meal was defined as a fertilizer, and section 2259 of the Code of 1906 provides that all commercial fertilizers (including cottonseed meal as provided for in section 2244) shall be branded high grade, standard grade or offgrade. Section 2260 establishes a standard for high grade cottonseed meal; section 2261, a standard for standard grade cottonseed meal; and section 2263 requires that cottonseed meal below the minimum requirement for "standard grade" meal shall be branded offgrade.

Now, since the fertilizer law of 1892 was amended by the legislature of 1906 to include cottonseed meal, though prior to this amendment cottonseed meal was excepted, and since sections 2260, 2261 and 2263 provide standards for cottonseed meal, as they also establish standards for fertilizers, we have proceeded to make inspection of cottonseed meal in accordance with the amended fertilizer law, and no question has ever been raised as to the legality of requiring all cottonseed meal sold in the state to be guaranteed, analyzed, tagged, and inspected as are all other fertilizers and fertilizer materials.

When the feeding stuff law, chapter 107, senate bill No. 367, became effective on March 21, 1908, section 14 of the bill excepted cottonseed meal, and this was done for the reason that cottonseed meal was already defined by section 2244 of the Code as a fertilizer, and an inspection of it as a fertilizer had been maintained for two years. I brought this matter to the attention of the committee which had the bill in charge, and they inserted section 14, senate bill No. 367, so that there could be no conflict, the intention of the act being to allow the ininspection of cottonseed meal as a fertilizer to continue. We have never inspected cottonseed meal, therefore, as a feeding stuff.

The records in our office show that during the season in which the J. Lindsay Wells Company sold the Gilmore Puckett Grocery Company cottonseed meal which was below guaranty, they had filed a guaranty and a sample on offgrade cottonseed meal in compliance with sections 2244, 2245 and 2263 of the Fertilizer Law as amended to include the inspection of cottonseed meal. The material which they sold as cottonseed meal was actually branded "cottonseed meal" as allowed and required by section 2263. Since they submitted to us a sample of this meal as required by section 2245, and also a guaranty on it, it is of course plain that they intended to sell it as cottonseed meal, and would have complied with all the requirements of the law had they not shipped the Gilmore Puckett Grocery Company an adulterated and fraudulent product, which did not meet the guaranty which they filed in our office. It should be borne in mind that this material sold the Gilmore Grocery Company was branded cottonseed meal by the J. Lindsay Wells Company, and a guaranty for it as "cottonseed meal" was duly filed in our office, as required by the law, and a sample of this cottonseed meal was also filed in accordance with the law. Since it was sold, branded, and guaranteed as...