Latimer v. Stubbs

• Decision Date: 10 June 1935
• Docket Number: 31556.
• Citation: 161 So. 869,173 Miss. 436
• Court: Mississippi Supreme Court
• Parties: LATIMER v. STUBBS et al.

161 So. 869

173 Miss. 436

LATIMER v. STUBBS et al.

No. 31556.

Supreme Court of Mississippi, Division A.

June 10, 1935

Appeal from Chancery Court, Newton County; A. B. Amis, Chancellor.

On suggestion of error.

Former judgment set aside, and decree of trial court affirmed in toto.

For former opinion, see 159 So. 857.

Ray &amp Spiney, of Canton, and C. M. Murphy, of Belzoni, for appellant.

May Sanders, McLaurin & Byrd and Flowers, Brown & Hester, all of Jackson, for cross-appellant.

SMITH Chief Justice.

The appellant, Latimer, suggests that we erred in reversing the decree of the court below in so far as it declined to award a judgment against him to the Compress of Union for the value of thirty bales of cotton delivered by it to Cook & Co.

The ground of this suggestion is that Latimer, or, rather, Cook &amp Co., obtained possession of the cotton with the consent of the Compress Company. This element of the case was overlooked in our former opinion. We shall not stop to inquire whether our so doing was counsel's fault or ours. Latimer's liability to the compress was placed in our former opinion on two grounds: (1) He converted the receipts for the cotton by selling them; and (2) he thereby became a party to the receipt and conversion of the cotton by Cook & Co., to whom he sold the receipts. Had the compress not delivered the cotton to Cook & Co., its damages for the conversion by Latimer of the receipts therefor, if any-as to which we express no opinion-would not be measured by the value of the cotton. Daggett v. Davis, 53 Mich. 35, 18 N.W. 548 51 Am. Rep. 91; 4 Sutherland on Damages (4th Ed.) §§ 1134, 1135. Latimer's liability for the value of the cotton depends on its conversion vel non by Cook & Co. The question then is, Does the evidence disclose that Cook & Co. are guilty of a conversion of the cotton?

" One who uses or otherwise intentionally deals with a chattel in the possession of another is not liable to the person in possession *** for harm to or loss of the use thereof, in so far as such dealing is pursuant to the assent of such person, unless the assent was obtained by duress or from one lacking capacity to consent or was obtained or acted upon fraudulently." 1 Restatement, Torts, § 252; 65 C. J. 14.

Cook &amp Co. obtained possession of the cotton with the assent of the Compress of Union without duress, and the compress was not lacking in capacity to assent in so far as its rights against Cook & Co. and Latimer were concerned. The question then is: Was this assent obtained or acted upon fraudulently? The evidence does not disclose any lack of good faith on the part of Cook & Co., and there can be no question of...