McNeer & Dodd v. Norfleet

• Decision Date: 19 March 1917
• Docket Number: 18921
• Citation: 74 So. 577,113 Miss. 611
• Parties: MCNEER & DODD ET AL. v. NORFLEET ET AL
• Court: Mississippi Supreme Court

74 So. 577

113 Miss. 611

MCNEER & DODD ET AL. v. NORFLEET ET AL

No. 18921

Supreme Court of Mississippi

March 19, 1917

Division B

APPEAL from the circuit court of Panola county, HON. E. D. DINKINS Judge.

Distress for rent by F. M. Norfleet and others against McNeer & Dodd and others, wherein the latter replevied the goods, and the former filed an avowry as assignee of a rent contract alleging a landlord's lien, McNeer & Dodd filing a plea of recoupment alleging the landlord's misrepresentation as to acreage. From a judgment for the avowments, defendants appeal.

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

Case reversed and remanded.

Elmore & Ruff, for appellant.

The very statutory rules of the "Landlord and Tenant" chapter with reference to the burden of proof are, as we attempted to point out in our first brief, nothing more and nothing less than an application of the common law itself in determining on whom the burden of proof rests. Examine those rules. They are the last line of section 2861, the last paragraph of section 2864 and section 2869. Each rule as applied to the state of pleading to which it refers is in exact correspondence with the common law. The common law would have placed the burden of proof on those pleadings exactly where the statute places it. But the lower court and the contention of appellees, besides being forced by their position to contend that the issue in this case was on the avowry, when in fact it was not so, would here reverse the common law rules, the very rules applied by the statute, and place the burden of proof on the pleader who joined issue by a flat negation of new affirmative matter, and give him who merely stands on denial who challenges us to proof, the opening and closing of the evidence and argument to the jury.

We respectfully deny that "the statute undertakes to prescribe and limit the defenses which are allowable in actions by landlords for the enforcement of liens," if by this is meant what we suppose it to mean: that is, that the tenant is limited and prescribed to certain replications. If that is not what is meant, we have no concern with it. If it has such reference, the language of the statute is in careful opposition, front to front, with such contention because the tenant "may reply any other facts constituting a legal answer."

The statement that "the legislature has seen fit to provide in our statute that in proceedings to enforce a landlord's lien, the burden of proof shall be upon the avowant, the landlord" is as we judge not intended to mean that such is the fact in all such proceedings but only so where the landlord files an avowry. For "in proceedings to enforce a landlord's lien" where a stranger claims the property, the burden is on the claimant as to ownership. Nor is the burden on the landlord under section 2861.

We also deny that "in any event the issue must be raised on the avowry of the landlord by replication of the tenant." For there is no limitation to "any other facts constituting a legal answer." If the facts constituting such legal answer do in fact take issue on the avowry well and good, the burden of proof will be on the landlord, but the facts may not consist in mere negation and the statute does not limit to such. The facts may be entirely new affirmative matter in avoidance and only such.

If they are only such, they absolutely cannot take issue on the avowry. Will appellees still say it "is an issue on the avowry," whether it is or not? We can see no reason, and think appellees have given none, why on the replication of other facts "definite issues should not be arrived at by the usual form of pleading." Garrett v Carlton, 65 Miss. 190.

We can see no reason nor can appellees, we believe, why, though the common law is always applied in the statutory rules as to the burden of proof, it must be discarded just at this point and reversed; nor why we should also hold that to be "an issue on an avowry," which is not so.

But, if driven away from this position appellees are still well because "under the rules of practice at common law the burden was upon the avowant." This conclusion is reached with apparent ease by the simple consideration that "while the allegations of the avowry are not specifically denied by the tenant, they are not confessed or admitted." And appellees are half way inclined to contend that "the replication in the absence of the truth of the allegations of the avowry was a general denial of the indebtedness laid in the avowry." This is more in line with the appeal to the statute than to the common law for, certainly we must judge such contention "wholly independent of any right or rules of pleading and practice existing at common law."

We regard this contention, which seems to contemplate a written confession or admission in terms in the pleadings, as novel; "it being a rule, that every pleading is taken to confess such traversable matters, alleged on the other side, as it does not traverse." Thigpen v. R. R. Co., 32 Miss. 353, 31 Cyc. 207. The case cited in the next paragraph of appellee's brief, Perkins v. Guy, 55 Miss. 179, is opposed to this contention.

To hold that the plea of recoupment "as a general denial of the indebtedness laid in the avowry," would leave out of view the true principle of recoupment. A plea of recoupment, single and alone, most assuredly contemplates as a necessity for its operation, the existence of an opposing valid claim on which the recoupment is to operate in the way of reduction or satisfaction. If there is nothing to mitigate or reduce or satisfy, the principle of recoupment is without application. The very minute it should become certain in the trial of a case that a plaintiff had no demand, the principle of recoupment would cease activity, so far from the plea being a denial of the indebtedness, we could not have denied the indebtedness and pleaded recoupment in a single plea such as there was here. The one single plea would be a denial and an admission at the same time. Our plea closes with, not a denial of the indebtedness but with "which damages plaintiffs will recoup against defendants' demand."

Now as to the effect of the denial of the right to open and close; we admit that Perkins v. Guy, 55 Miss. 181, sustains the position of appellees that such denial is not ground of reversal; though we think that case could well have been decided on what seems to be the usual rule; that the matter is to be determined from the substance of the pleadings at the beginning of the trial and is not to be varied by jockeying with the pleadings after all the evidence is in. Certainly no fault can be found with the decision as applied to the particular facts of the case, the defendants there having experimented with the court and plaintiffs until all the evidence was in.

But we referred in our first brief to a later case than that, the case of Porter v. Still, 63 Miss. 361.

We note in 38 Cyc. 1310, the authority referred to by appellees, that in note 57 many of the leading courts in the country hold without qualification that a denial of this right to the party entitled thereto is reversible error. And we further notice that the cases cited in note 66, specially referred to in the opposing brief, are cited to the proposition "that there is no available error where it is apparent that no prejudice resulted," another note on the point will be found in American Ann. Cases, 1912D, 251.

Appellees conclude their discussion on the point by the declaration: "This question has been many times presented to this court, but no cases has ever been reversed because of the denial by the trial court of the request of a party to a suit to open and conclude the argument." This statement is evidently a shot at random. We have carefully examined George's Digest, Brame & Alexander's, Thompson & McWillie's, Bobbs & Merrill's Mississippi Digest and the digest in 29th Mississippi. We made an examination at the time of preparing our first brief and again after reading the above statement in appellees' brief and we find only three cases digested on this point which are: Thornton v. R. R. Co., 29 Miss. 143; Perkins v. Guy, 55 Miss. 179; Porter v. Still, 63 Miss. 357.

The first case above we consider of no importance on this point as there could be no question of the correctness of the ruling of the trial court. A full discussion on the question of the right to open and close will be found in a very extensive note to Brunswick Co. v. Wiggins (Ga.), 61 L. R. A. 513. We request special attention to the discussion under the caption "General Principle," on page 513, and to "Conclusion" on page 563.

With reference to the statement that on "pages 103 and 104, it is shown that appellant, J. E. Dodd, was permitted by the court and did actually testify to admissions on the part of Dr. Roseborough as to knowledge of the acreage at the time of the making of the contract," we request the court's particular attention to those pages and the rulings there noted, bearing in mind that Dr. Roseborough on the trial maintained that he did not know the acreage at the time of the contract, and the purpose of the evidence then being offered was to show that it was taken as conceded at that meeting to which Dr. Roseborough was a party that Dr. Roseborough had represented to plaintiff that he had six hundred acres in cultivation.

The first branch of appellees' argument to sustain the correctness of instruction number 6 is in substance this: "It is not necessary to believe that the lessor intentionally misled plaintiffs" means the same thing as "it must be established by proof that is clear and satisfactory that the representation was made with the intention of deceiving and defrauding."

We doubt whether a jury could...