Key v. Withers & Wellford

• Citation: 159 Miss. 125,131 So. 868
• Decision Date: 12 January 1931
• Docket Number: 29041
• Parties: KEY v. WITHERS & WELLFORD
• Court: Mississippi Supreme Court

131 So. 868

159 Miss. 125

KEY v. WITHERS & WELLFORD

No. 29041

Supreme Court of Mississippi

January 12, 1931

Division B

(Division B. Suggestion of Error Overruled, Jan. 26, 1931.)

1. APPEAL AND ERROR.

Findings of county judge, sitting as judge and jury, on fact issues have same weight on appeal to circuit court as jury's verdict.

2 SALES. Consignor, treating goods as belonging to it after consignee's violation of contract provision respecting monthly reports, could not, after goods were destroyed change position so as to make consignee liable for invoice price.

The contract required consignee to make monthly reports of amount of goods on hand, and provided that if such reports were not made, consignee would pay to consignor the invoice price, less discount, and that thereupon title to goods should vest in consignee. Evidence showed that at no time during contract did consignors demand from consignee monthly reports provided for or notify consignee that on failure to make reports consignors would stand on provision referred to, but, instead, accepted monthly statements from their traveling salesman, containing substantially reports, which contract provided consignee should make.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Washington county, HON. S. F. DAVIS, Judge.

Action by Withers & Wellford against W. H. Key, commenced in a county court. Judgment was in favor of defendant, but on appeal to the circuit court judgment was reversed, and final judgment was entered for plaintiff, and defendant appeals. Reversed and rendered.

Reversed, and judgment for appellant.

W. S. Watson, of Greenville, for appellant.

Under the county court procedure and appeals therefrom all appeals are taken up on record made in the county court, and the cause ordinarily, as in this case, is heard by the circuit court solely on the record made in the county court. In the instant case the county court, acting as both judge and jury, having heard the evidence and observed the demeanor of the witnesses on the stand, gave judgment in favor of defendant, appellant here. The reversal by the circuit court of the county court was tantamount to a reversal of the finding of facts by a jury. It has been repeatedly held by this court that a finding of fact by a jury, or a finding of fact by a chancellor, will not be reversed unless palpable error be shown. There was no palpable error shown by appellee.

The appellant was merely an agent, or bailee, of appellee.

Agent is required to exercise only ordinary and reasonable care skill and diligence, and if he does so, he will not be liable for losses which the principal may sustain.

2 C. J., page 720, par. 381; 2 C. J., page 722, par. 382.

Percy Bell, of Greenville, for appellee.

Even if appellant is correct in his statement that the reversal of the county court by the circuit court was tantamount to a reversal of the finding of facts by a jury, it is still not grounds for reversal here, because that court, like every court of review, had the right to reverse on the facts.

But we further submit that the action of that court was not a reversal of the facts, but a reversal on a mistaken concept of the law entertained by the court below and an upholding of clause 5 of the contract by the circuit court.

The burden of proof was upon the defendant, appellant, to show by a preponderance of evidence that the plaintiffs, appellees, had waived or abandoned their contract, which contract would govern the parties unless its waiver or abandonment was plainly proven.

Argued orally by Percy Bell, for appellee.

OPINION

Anderson, J.

The appellees brought this action against the appellant in the county court of Washington county to recover the invoice price of certain petroleum products delivered by appellees to the appellant, under a written contract entered into between the parties. There was a trial before the county judge, sitting as both judge and jury, resulting in a judgment in appellant's favor. From that judgment appellees appealed to the circuit court, where the judgment of the county court was reversed. Following the procedure laid down by the county court statute (Code 1930, section 704), a final judgment was entered in the circuit court for appellees, from which judgment appellant prosecutes this appeal.

On August 6, 1925, appellant and appellees entered into a written contract, the pertinent parts of which were as follows:

"1. The First Party (appellees) agrees to deliver to the Second Party (appellant) from time to time such goods, wares and merchandise, consisting of gasoline, kerosene, lubricating oils, greases and other petroleum products, as in its judgment, may see fit, and the Second Party agrees to receive and accept possession of the said goods, wares and merchandise, upon the terms and conditions hereinafter stated.

"2. The Second Party agrees to receive and accept possession of the said goods, wares and merchandise from the First Party and to hold and care for the same as the property of the First Party, it being expressly agreed that the title to said goods, wares and merchandise or of the proceeds thereof shall always be vested in the First Party, and such merchandise shall be, at all times, subject to and under the control of the First Party. The title to the said goods, wares and merchandise shall pass directly from the First Party to such person, or persons, to whom the same shall be sold, in the manner and upon the terms set forth.

"3. The Second Party shall keep said wares, goods and merchandise fully insured against loss or damage by reason of fire, for the benefit of and in the name of the First Party with a solvent fire insurance company or companies approved by the First Party as insurer or insurers.

"4. The Second Party agrees to:

"(a) Sell such goods, wares and merchandise to such person or persons as it shall judge to be of good credit and business standing, and,

"(b) Collect for, and in behalf of, the First Party all bills and accounts for the goods, wares, and merchandise so sold, and,

"(c) On or before the 1st day of each and every calendar month hereafter to render to First Party an account of statement showing all such goods, wares and merchandise delivered to and received by the Second Party as herein provided during the preceding calendar...