Luderbach Plumbing Co. v. Stein

• Decision Date: 05 March 1917
• Docket Number: 18891
• Citation: 113 Miss. 475,74 So. 327
• Court: Mississippi Supreme Court
• Parties: LUDERBACH PLUMBING CO. v. STEIN

74 So. 327

113 Miss. 475

LUDERBACH PLUMBING CO. v. STEIN

No. 18891

Supreme Court of Mississippi

March 5, 1917

Division B

APPEAL from the circuit court of Hinds county, HON. W. H. POTTER Judge.

Suit by the Luderbach Plumbing Company against Nellie Stein. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Robert Powell, for appellant.

In this case the different items on the account were disputed and each item under the evidence stood upon its own footing, if any of the items were correct we are certainly entitled to the amount of such items.

Under this state of facts the court gave the following instruction marked No. 4 for the defendant: No. 4. The court instructs the jury for the defendant that the burden of proof is upon the plaintiff, Luderbach, to establish his case by a preponderance of the evidence, and that if he fails to establish his case by a preponderance of the evidence, as to any part of the account, it is your duty to find for the defendant. Given.

The court will readily see that the granting of this instruction amounts to a peremptory instruction for the defendant, since the appellant in his evidence admitted that the account instead of being one hundred and ninety-two dollars, should have been one hundred and seventy-five dollars and was not correct as to several items.

This instruction declares to the jury in effect, that notwithstanding the larger part of our account may have been correct and unpaid yet if we failed to establish by a preponderance of the evidence any part of the account, it was their duty to find for the defendant as a whole.

This is so patently erroneous that we will not insult the intelligence of the court by a further discussion of it for even though we may have failed to establish one item of the account, this did not prevent us from getting judgment for the rest.

The appellee claims that this instruction is cured by other correct instructions in the case. We refer the court to some of our own decisions on this point.

"When an erroneous instruction is given, the error is not corrected by the giving of another, setting out a rule in direct conflict with the rule stated in the erroneous instruction the contradiction between the two leaves the jury without any safe guide and is of itself improper." House v Fultz (1849), 13 S. & M. 39; Herndon v. Henderson (1868), 41 Miss. 584. It is improper to give contradictory charges to the jury. Mississippi Cent. R. Co. v. Miller (1866), 40 Miss. 45; Illinois Cent. R. Co. v. McGowan (1908), 92 Miss. 603, 46 So. 55.

(1877) "Where the evidence is conflicting, it is essentially important that there should be no conflict in the instructions. Chapman v. Copeland, 55 Miss. 476."

In reply to appellee's contention that we cannot recover because she was keeping a house of ill fame we quote the following authorities: In the well-analyzed case of Anheuser Busch Brewing Assn. v. Mason, 44 Minn. 321, a recovery was allowed to a liquor dealer for beer sold to the keeper of a house of ill fame even though the seller knew that it was to be used in the brothel by the inmates, the seller doing nothing to aid the unlawful business. In the case of Tracey v. Talmage, 14 N.Y. 175, 67 Am. Dec. 139, where a banking company bought bonds to be used in illegal transactions, the vendor could recover even though he knew of the unlawful business, provided he did nothing to aid it. In the case of Armfield v. Tate, 29 N.C. 258, the supreme court of North Carolina held that a vendor's knowledge that property sold was to be used by the purchaser as a residence for his kept mistress does not defeat the right to recover the purchase price. In the case of Bishop v. Honey, 34 Tex. 252, it was held that knowledge of a mechanic that a house which he builds is to be used as a house of ill fame will not prevent recovery for his work. See, also, Hubbard v. Moore, 24 La. Ann. 591; 12 Law Rep. 128, holding that the seller of furniture is not prevented from recovering the purchase price because of knowledge on his part that it was to be used in a bawdy house. The mere knowledge of the seller of clothing that the purchaser is a prostitute will not defeat his recovery of the purchase price unless he expects to be paid out of the profits of her prostitution or does something in aid of it. Browry v. Bennett, 1 Camp. 348.

The case of Hldt v. Barton, 22 Miss. 711, cited above, lays down this rule: "To render a contract illegal, it must grow immediately out of and be immediately connected with the original illegal or immoral act and not founded on a new consideration. A subsequent sale of the subject of an illegal act, after the original act is consummated and a new contract founded thereon, will be valid." And see Green v. Sizer, 40 Miss. 530.

We call the court's attention also to the case of Florida Conithan v. Royal Insurance Co., 91 Miss. 386, as throwing light upon this case, also the case of Insurance Company v. Heidelberg, 72 So. 852.

For these errors we claim a reversal of the case.

Hamilton & Hamilton, for appellees.

The most that can be said against this instruction is that it is ambiguous, and that it is capable of a double meaning. It tells the jury to find for the defendant if the plaintiff fails to prove his case as to any part of the account. And given a reasonable interpretation, the instruction is correct. If the plaintiff proves no item of his account whatever, he fails to establish his case as to any part of the account, and the verdict should be for the defendant. If some items of the account he fails to prove and some he does prove, he does not fail to establish his case at any part of the account, and he is entitled to a verdict for such items as he proves. But if he fails to establish his case "as to any part of the account," meaning thereby, if he fails to prove any item whatever--that is to say, if he proves no item at all -- the defendant is entitled to a verdict. Granting that the instruction, when standing alone, is capable of a double meaning and is ambiguous, the ambiguity is cured when read in connection with the other instructions in the case. And this is the way it should be read. "It is familiar learning that all the instructions in any case must be construed together, so as to harmonize them, if reasonably it can be done." Cumberland Telephone & Telegraph Co. v. Jackson, 48 So. 614, 95 Miss. 79. When this is done, the meaning becomes clear. This instruction was intended simply to set forth the law with reference to the burden of proof.

Defendant's instruction No. 3 plainly tells the jury that they are to find for the plaintiff for such items of the account as he may prove. "The court instructs the jury for the defendant that you are the judges of the facts in this case and for the correctness or incorrectness of the account, and that if you believe from the evidence that the account is incorrect as stated, it is your duty to find for the...