J.K. Orr Shoe Co. v. Edwards

• Decision Date: 29 May 1916
• Docket Number: 18203
• Citation: 71 So. 816,111 Miss. 542
• Court: Mississippi Supreme Court
• Parties: J. K. ORR SHOE CO. v. EDWARDS ET AL

71 So. 816

111 Miss. 542

J. K. ORR SHOE CO. v. EDWARDS ET AL

No. 18203

Supreme Court of Mississippi

May 29, 1916

APPEAL from the chancery court of Jones county, HON. SAM WHITMAN Jr., Chancellor.

Suit by the J. K. Orr Shoe Company against D. V. Edwards and another.Demurrer to bill of complaint sustained; complainant appeals.

On the 17th day of April, 1913, appellant filed its original bill of complaint in the chancery court of the Second district of Jones county against D. V. Edwards and J. C. McKinley.Appellant sets out in its original bill of complaint that it is a corporation domiciled in Atlanta, Ga., and the defendants are residents of the Second district of Jones county.Complainant sets out that it sold to D. V. Edwards at Gitano, Miss., two hundred and twenty-eight pairs of shoes for the sum of three hundred and seventy-six dollars and eighty-five cents, and that by the terms of contract of said sale said shoes were to be shipped to Gitano, Miss., a flag station on the branch line of the Gulf & Ship Island Railroad Company; that Gitano was a station where the railroad maintained no depot, but threw off freight at the risk of consignee, requiring, therefore, that the freight charges be paid in advance; that although the complainant had promptly filled the order for the shoes above mentioned and promptly delivered the same to the railroad company, through some fault of the railroad company said shoes were not delivered promptly at Gitano; that the said shoes were packed in crates and boxes, and when they arrived at Gitano were thrown off the freight train and remained there for several days, when same disappeared.The bill further alleges that, defendant Edwards having declined to pay for the said shoes complainant brought suit against him on open account, and that Edwards appeared and filed his plea, stating that after he had given appellants the order for said shoes and did not receive them, appellant's traveling salesman called on him at Summerland, Miss., where appellee was then in business, and on the condition that he be relieved of paying for the shoes, he gave appellant's traveling salesman the bill of lading for said shoes in order to make claim against the railroad company, and gave appellant's traveling salesman another order for goods to be shipped to him at Summerland.At the October, 1910, term of said courtthis case was tried before a jury and this issue submitted to the jury, and the jury decided in favor of the appellee Edwards.Appellant further alleged in his bill that on the 5th day of May, 1907, appelleeD. V. Edwards sold his stock of goods at Gitano to J. W. McKinley, who was made a defendant to the original bill.It is alleged that McKinley took charge of said stock of goods at Gitano, and remained in charge for several months, and that then the said McKinley resold the said stock of goods to appellee.The bill further alleges that as soon as it was found out that Edwards had not received the thirteen boxes containing said shoes, appellant diligently endeavored to locate same, and to ascertain who did get the shoes, but that its efforts were unsuccessful until within six months before the filing of its bill of complaint, when it learned for the first time that J. W McKinley got the shoes, and learned at the same time that McKinley carried the shoes in question to his store at Gitano, Miss., and unpacked them and placed them with the stock of goods that he...