Hall Commission Co. v. Crook

• Citation: 40 So. 20,87 Miss. 445
• Court: Mississippi Supreme Court
• Decision Date: 05 February 1906
• Parties: HALL COMMISSION COMPANY v. ROBERT L. CROOK ET AL

40 So. 20

87 Miss. 445

HALL COMMISSION COMPANY v. ROBERT L. CROOK ET AL

Supreme Court of Mississippi

February 5, 1906

FROM the circuit court of Warren county, HON. OLIVER W. CATCHINGS Judge.

Crook and another, the appellees, partners under the firm name of R. L. Crook & Company, were the plaintiffs in the court below; the Hall Commission Company, the appellant, was defendant there. From a judgment in plaintiffs' favor the defendant appealed to the supreme court.

This was an attachment suit by R. L. Crook & Co. against the Hall Commission Company. Plaintiffs were grain dealers in Vicksburg, and the Hall Commission Company were grain dealers in St. Louis, Mo. Plaintiffs ordered from defendant three car loads of oats to be delivered f. o. b. at Vicksburg. The order was accepted, and three car loads of oats shipped to plaintiffs, and drafts for the purchase price, with bills of lading attached, sent for collection to a bank at Vicksburg. When the drafts were presented to plaintiffs by the bank they were accepted, but not paid, and the bills of lading were delivered to plaintiffs, who presented them to the railroad company and obtained possession of the cars containing the oats. Upon inspection of the first two cars, plaintiffs found that the quality of the oats received was inferior to that ordered. They telegraphed defendant to this effect, and offered to take the two cars at one hundred dollars a car less than the contract price, which offer was accepted by the defendant, who wrote plaintiffs that, as soon as the bank advised them that the drafts had been paid, a check for the difference would be sent plaintiffs. The drafts were paid but upon examination of the third car the oats contained in it were also found to be of inferior quality. The defendant declined to pay the difference, on the ground that the plaintiffs, in obtaining the bills of lading before paying the drafts, had changed the contract so as to make it a purchase on inspection instead of one upon an implied warranty. Plaintiffs then attached.

On the trial in the circuit court the defendant filed a plea in abatement, alleging that "at the time of the filing of the affidavit for attachment herein the firm of R. L. Crook &amp Co. was not a creditor of the defendant, and the said defendant was not at that time indebted in any sum to the plaintiffs." To this plea the plaintiffs demurred on the ground that "the issue of indebtedness cannot be set up in a plea in abatement;" that it "is a separate and distinct issue from that of the rightfulness of the attachment, and cannot be embraced within the same." This demurrer was sustained. A second plea in abatement was filed, traversing all the grounds of attachment, except nonresidence, and denying that the debt was due.

The court gave a peremptory instruction to find for the plaintiffs in the sum of two hundred dollars for the first two cars, being the agreed difference at the rate of eight cents a bushel on one thousand two hundred and fifty bushels contained in each car. The court gave another instruction for the plaintiffs, to the effect that, if the jury believed from the evidence that the oats shipped in the third car were inferior in quality to those ordered, then they would find for the plaintiffs in such sum as they found the difference to be. Every instruction asked by defendant was refused except one, which instructed the jury that the defendant was not bound as to the oats contained in the third car by the agreement made as to the other two cars, and that, if they believed the oats contained in the third car were worth the purchase price contracted for, they would find for the defendant as to that car and allow no reclamation thereon.

Judgment affirmed.

McLaurin, Armistead & Brien, for appellant.

The court erred in sustaining plaintiffs' demurrer to defendant's first plea in abatement. The first ground of attachment--the essential relation between the attaching party and the party to be attached--is the necessity of a debt from the party to be attached, or a rightful demand existing in the party attaching against the party attached. Code 1892, § 129. The second essential is for at least one of the eleven grounds mentioned in said section of the code to exist.

In order to sustain an attachment against a debtor on the ground of nonresidence, the debt must be due. A plea in abatement is sufficient if it set up that the debt sued upon is not due. Stadler v. Jacobs, 70 Miss. 429 (S.C., 12 So. 444).

An affidavit traversing the truth of the indebtedness should be, and is, as admissible as it would be to deny under oath that the debt was due.

Code 1892, § 165, says: "The defendant in attachment may file a plea in abatement, verified by affidavit, traversing the truth of the alleged grounds upon which the attachment was sued out," etc.

The issue on the plea would be whether or not the attachment was rightfully sued out. Cock v. Kuykendall, 41 Miss. 65.

As against a nonresident, it is essential that the attaching creditor must have a past-due debt.

Crook had no right to any reclamation, and if the oats were not what he originally ordered, and if he paid more for them than they were worth, it was his own fault. The original sale was on a warranty as to grade, and the only right in the world Crook had was to pay the draft after notification of the arrival of the goods, detach the bill of lading, surrender it to the railroad, and then take the oats; then, if not up to grade, he could hold Hall for the damage. See the bills of exchange. No time for payment is mentioned in them. They were in character similar to checks payable on demand. Parker v. Reddick, 56 Miss. 242; Converse v. Johnson, 146 Mass. 20.

Crook had no right to the bills of lading until the drafts attached had been accepted and paid. The bank holding the bills of lading and drafts had no right to surrender the bills of lading on a mere acceptance, and this act of the bank did not divest ownership in the oats. Stollenserck v. Thatcher, 115 Mass. 124; Downs v. National Bank of Milwaukee, 91 U.S. 618; New Haven, etc., Company's cases, 57 Conn. 379 (5 L. R. A., 305); Oxford Lake Line v. First National Bank, 24 So. 482 (Fla.); Bank v. Cummings, 89 Tenn. 617; Heiskel v. Farmers', etc., Bank, 89 Pa. 155 (33 Am. St. Rep., 745).

Bryson & Dabney, for appellees.

The defendant cannot go into the merits of the indebtedness in the trial of the attachment issue. What can be the reason for having a trial on the merits if the merits must be gone into on the attachment issue? To keep these two issues apart, the statute provides that the attachment issue shall be tried first; and, that being sustained, the question of indebtedness shall then be tried.

If the debt was due, there was no error in the action of the court in granting a peremptory instruction for the plaintiffs on the attachment issue. This is a question of fact arising solely from the evidence adduced at the trial.

From the very moment that the defendant on this contract delivered oats inferior in quality to what it had agreed to deliver the indebtedness arose and necessarily became due at once. No amount of parleying between the parties could change this state of facts.

Admit, for the sake of argument, that Crook's action in getting possession of the car before paying the draft was wrong, it clearly could not have the legal effect of changing the terms of the original contract. It may have enabled Crook to discover Hall's fraud, in shipping inferior oats, at an earlier date than he would otherwise have discovered it, but that is the most that can be said. The only material fraud in this transaction was fraud in the defendant in shipping inferior stuff.

The core of the whole contention was whether or not the oats were of the kind and quality contracted for. If they were not, then the defendant was liable, and the question of whether or not the cars had been paid for could have no legal effect whatever.

Two courses were open to the plaintiff on receipt of the oats: One was to reject them outright, as failing to fulfill the contract, and bring action for the breach of contract; and the other was to accept them and bring action for the difference in value between the goods purchased and the goods delivered, and it was this course that the plaintiffs took.

In Stilwell Co. v. Biloxi, 78 Miss. 786 (S.C., 29 So. 513), the purchaser refused to pay for the machine purchased, and forced the seller to bring suit for the purchase money. This court decided in that case that the purchaser, having kept and used the machine, could not defend absolutely, but must pay what was a reasonable and just price for the machine, and that he had the right to recoup the difference in value between the machine purchased and that delivered. The principle that we now contend for is absolutely sustained in that case.

OPINION

HARPER, Special J. ^[*]

The demurrer to defendant's first plea in abatement was properly sustained. That plea sought by way of plea in abatement to deny that defendant was indebted to plaintiffs. This is not permissible. The debt can only be denied by a plea in bar. It is true that if there be no debt the attachment has been wrongfully sued out. But the trial of this question is reserved under our practice for the trial on the merits, since it ends the whole proceeding; otherwise, there might be two trials of this one issue in the same cause, and each might result differently.

The second plea in abatement denied, among other things, that plaintiffs' demand was due. This question was properly left to the jury, since an attachment cannot be sued out against a nonresident unless the debt be due. After the facts had all been shown, the court properly directed the jury to find for plaintiff...