Grenada Cotton Compress Co. v. Atkinson

• Decision Date: 30 November 1908
• Docket Number: 13,563
• Court: Mississippi Supreme Court
• Parties: GRENADA COTTON COMPRESS COMPANY v. WILLIAM ATKINSON

47 So. 644

94 Miss. 93

GRENADA COTTON COMPRESS COMPANY v. WILLIAM ATKINSON

No. 13,563

Supreme Court of Mississippi

November 30, 1908

FROM the circuit court of Madison county, HON. WILEY H. POTTER Judge.

Atkinson appellant, was plaintiff in the court below, the Cotton Compress Company, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

The appellant did a cotton warehouse business in Canton, Miss and for each bale of cotton delivered to it for storage issued a separate receipt in the following form, with the blanks properly filled out:

"Granada Cotton Compress Company.

"Canton Miss., , 1905. No. 34,108.

"Received of one bale of cotton in apparent good order.

Mark. No. Weight. Remarks.

"All claims of any kind hereunder must be adjudicated before the property leaves our possession. Not responsible for loss or damage by fire or water. This bale of cotton to be delivered only on return of this receipt properly indorsed.

" , Manager."

The appellee was a cotton merchant in New Orleans, La., and did business in Canton, Miss., where he had an agent, one Dow and appellee through Dow bought large quantities of cotton from different owners having cotton stored with the appellant, who delivered to Dow the warehouse receipts representing the cotton and these deliveries were in fact considered as the delivery of the cotton, since the appellant recognized the holders of the receipts as the owners of the cotton covered by same and bearing the corresponding numbers and marks. The cotton of the appellee was shown to have been in good condition when delivered to the compress company. A large quantity of the cotton so delivered to appellant was by it placed on the ground in an open field, without protection from the rain or from water standing on the premises. The season was a wet one, and afterwards, when this cotton was shipped to appellee in New Orleans, at the request of Dow, it was found to have been damaged by water.

Upon the receipt of the cotton in New Orleans, it was delivered to a public weigher, one Crawford, who weighed and inspected the cotton, and kept books in which he entered the grade mark, weight and condition of each bale of cotton. If the cotton slightly damaged, it was "scale picked;" that is, the damaged cotton was picked off at the scales under his supervision, so as to put the bale in merchantable condition. The bale was then re-weighed, and a record made of the loss in weight. When the bale was found to be so badly damaged that it could not be put into merchantable condition by "scale picking," Crawford ordered it sent to a cotton pickery; each bale sent to the pickery being accompanied by the grade mark and weight of the bale, and a memorandum given to the driver of the dray from the pickery, which was handed to the foreman of the pickery, one Steeg. Upon receipt of the cotton at the pickery, Steeg entered in books kept by him the tag number, original weight, and grade mark. The bale was then picked under his supervision, so as to put it in merchantable condition. He then reweighed the bale and entered the re-weight in his books. The pickings was then paid for by the pickery at the regular market price. The cotton was then sold by appellee according to these re-weights at the regular market price. The sum sued for in this case was the value of cotton lost on each particular lot of cotton at the prevalent market price, giving credit for the value of the pickings.

On the trial the court admitted the books of each witness to be used in connection with the testimony of Crawford, the cotton weigher, Steeg, the pickery foreman, Dow, appellee's agent at Canton, L. S. Atkinson, the general manager for appellee, and the books of the appellant compress company, produced and identified by its agent at Canton, Hester. All of the books introduced as evidence, from which the above witnesses testified, were objected to by the defendant below on the ground that they had not been legally authenticated, since it appeared that the witnesses did not make all of the entries in the books from which they testified, and did not have personal knowledge of the matters about which their testimony was given, but relied upon the books for facts. Appellee offered proof showing that the books were correctly kept, were frequently audited and balanced during the course of business, that all entries made in them were made at the time the various transactions occurred, and were made by the parties having knowledge of such transactions.

Other questions were presented: First, as to the right of the appellee to recover, because the claim was first made after the cotton had left the compress, in violation of the terms of the receipt; second, because the compress company did not assume liability for damages by water according to the terms of the receipt; and third, because damage to each particular bale was not proved, it being shown only that certain lots of cotton were damaged

Affirmed.

W. C. McLean, for appellant.

Under the principles laid down in Chicago, etc. R. Co. v. Provine, 61 Miss. 288, and reaffirmed in Illinois, etc., R. Co. v. Gross, 22 So. 946, the plaintiff signally failed to make out his case. The evidence shows that only one bale at a time was delivered, and that for each separate bale a separate and distinct compress company's receipt ticket was issued; and there is nothing to show the loss on any one particular bale. It is a clear proposition that the delivery of each bale of cotton to the compress company was a separate and independent contract; and accordingly it must follow, as held in the Provine case, supra, that before plaintiff can legally recover he must show the breach of that specific contract. The only way whereby the breach of any particular contract can be shown is by identification of the particular bale of cotton with reference to which the breach occurred; and the amount and character of damage to such bale must be clearly shown. As plaintiff has recovered on claim of damage to a large number of bales viewed in the aggregate, and has failed to show the extent of damage to each different bale, the judgment of the court below should be reversed and the cause be remanded.

W. H. Powell, Huber & Powell, on the same side.

But for the different books of account shown in evidence, and from which different witnesses for appellee testified, appellee's case must fall to the ground. It will be noted that none of the witnesses had any recollection, independent of the books, of the matters about which they testified tending to establish the identity of the cotton, its value, quality, or damage and time of damage thereto. The books were not properly authenticated and all of the witnesses did not make the entries in the books from which they testified. Their testimony was accordingly incompetent. Chicago, etc. R. Co. v. Provine, 61 Miss. 288; Moody v. Roberts, 41 Miss. 77.

In order to sustain a judgment in his favor the appellee should have proved every identical bale damaged and the amount of damage to each bale after the compress company received the cotton and before it lost possession of it. A claim for general shortage or damage to a whole consignment of cotton consisting of many bales is not recoverable. Chicago, etc. R. Co. v. Provine, supra.

The appellee is precluded from recovery because of the provisions in the compress company's receipts that all claims for damages must be adjudicated before the cotton leaves the compress company's possession. Such a provision is reasonable. Hunnicutt v. Express Co., 54 Miss. 566; Libbey's case, 33 L.Ed. (U.S.) 818.

A public corporation cannot by previous contract exempt itself from its own negligence, but a private corporation, such as is appellant, may do so. Therefore the provision in the contract of bailment that appellant should not be responsible for damages from fire and water can be invoked in its defense. The damages to the cotton, if any, were caused by water; and, even if appellant caused the damage, it cannot be held liable because of the exemption as to this under the contract.

Pratt & Reid, for appellee.

The books of account of the weigher and picker were properly admitted in evidence. If we take as our guide the rule laid down in Moody v. Roberts, 41 Miss. 74, to the effect that it must appear that the books "are the regular books of...