Mississippi Cooperative Cotton Ass'n v. Walker
| Decision Date | 27 November 1939 |
| Docket Number | 33899 |
| Citation | 186 Miss. 870,192 So. 303 |
| Parties | MISSISSIPPI COOPERATIVE COTTON ASS'N v. WALKER |
| Court | Mississippi Supreme Court |
APPEAL from the circuit court of Simpson county HON. EDGAR M. LANE Judge.
Action by Willie Lee Walker against the Mississippi Cooperative Cotton Association for the value of lint cotton raised by plaintiff's assignor and allegedly converted by a third party and sold to defendant without the knowledge or consent of the assignor. From a judgment for plaintiff, defendant appeals. Affirmed.
Affirmed.
Butler & Snow, of Jackson, for appellant.
It is not necessary to plead specially that plaintiff had only a limited interest in the property.
Fiction of common law and common law forms of action and defenses are abolished.
Sections 521 and 531, Miss. Code of 1930; Alliance Trust Co. v Hardwood Co., 74 Miss. 584; Coopwood v McCandless, 99 Miss. 364; Evans v. Miller, 58 Miss. 120; Miss. Power & Light Co. v. Pitts, 181 Miss. 344; Neely v. Allis-Chalmers Mfg. Co., 174 Miss. 519; Southeastern Express Co. v. Namie, 182 Miss. 447.
The suit is essentially a suit for damages.
First National Bank of Greenville v. Montgomery, 70 Miss. 550.
It is elemental in a suit for damages that the plaintiff is required to lay his damages in the declaration and to prove the damages as laid. Pleading without proof will not do.
It seems perfectly clear that under Sections 2186 and 2238, Mississippi Code of 1930, Mr. Neely had an interest in the cotton in question, which he could assert and maintain against the tenant, or anyone acquiring the cotton, even without notice of Mr. Neely's interest.
Newman v. Bank, 66 Miss. 323; Eason v. Johnson, 69 Miss. 371; Warren v. Jones, 70 Miss. 202; Powell v. Smith, 74 Miss. 142; Walker-Durr Co. v. Mitchell, 97 Miss. 231; Robinson v. Weathersby, 101 Miss. 724; Bank of Greenville v. Tenn. Joint Stock Land Bank, 179 Miss. 534; Fitzgerald v. Fowlkes, 60 Miss. 270; Cohn v. Smith, 64 Miss. 816.
It seems clear that under the statutes and the cases cited, appellee's assignor, the tenant, had a special or limited interest in the property, and if entitled to recover at all, was entitled only to recover as damages, the value of that limited or special interest.
26 R. C. L. 1153; Jones v. Horn, 51 Ark. 19; Cooke v. Cross, 57 Ark. 87; California Cured Fruit Assn. v. Ainsworth, 134 Cal. 461; First Natl. Bank v. Broder, 107 Conn. 574; Harry v. Morse, 69 N.H. 475; 21 Encl. of Pl. and Pr., pages 1095 and 1099; 65 C. J., pages 87-88, 94, 98, 104, 132, 149; Alliance Trust Co. v. Hardwood Company, 74 Miss. 584.
We think it perfectly clear that under the facts of this case, any recovery allowed appellee should have been reduced by the amount of the advances.
There were issues of fact which should have been submitted to the jury. It is clear that if appellee's assignor turned the cotton over to Mr. Neely, with the understanding, express or implied, that he was to sell it and to account to her for her interest in the proceeds, the appellee was not entitled to recover. It is our contention that there was an issue of fact on both of these matters, and that those issues should have been submitted to the determination of the jury.
Frank T. Williams and Edwards & Edwards, all of Mendenhall, and James W. Strong, of Jackson, for appellee.
In reply to the contention of appellant that it is not necessary to plead specially that plaintiff had only a limited interest in the property it is only necessary to refer to the case which is cited in support of that contention, namely, Alliance Trust Company v. Nettleson Hardwood Company, 74 Miss. 584. That case, though it said that the Hilary Rules were not in force in this state, did not leave us to resort to the common law in cases of this kind for rules of pleading, but on the contrary, it sets out the very rule which the learned trial judge followed, which is the well known statutory rule that affimative matter in defense must be pleaded to be availed of by defendant. The above named case states, "--while, as to affirmative matters, as held in Tittle v. Bonner, supra, they must be specially pleaded, or notice of them given under the general issue, we do not think the Hilary Rules are themselves in force with us."
Tittle v. Bonner, 53 Miss. 585; Y. & M. V. R. R. Co. v. Grant, 86 Miss. 565.
The testimony of Lillie Walker, corroborated by that of Fairchild, the appellant's witness, shows that Neely was not authorized to handle the cotton of Lillie Walker. This is clearly a much stronger case for appellee than was the case decided in favor of Cohn Bros, in Schmidt et al. v. Federal Compress & Warehouse Co. et al., 169 Miss. 589. In that case the landlord, who had a first lien on all the cotton, let the tenants haul the cotton to the compress and instructed them to get receipts in the name of tenant and landlord jointly. The tenant violated this order and took the receipts in their name and sold them to bona fide purchasers, who thereafter claimed the cotton, the tenants, named Crow, being also made parties to that cause which was begun by bill of interpleader filed by the Compress. The court there said,
And though there had been prior breaches similar to this the Court said:
As to the question of whether there was a settlement between Lillie Walker and Neely for the value of the cotton, appellee submits that appellant is concluded on that point for failure to plead a settlement, and this was clearly settled in the case of Sivley v. Williamson, 112 Miss. 276, wherein the court pointedly states: Likewise, neither was done in the case at bar, and "settlement" as used by appellant, could mean nothing different from "payment."
It is respectfully submitted by appellee that the trial judge was correct in his rulings in this cause and in the granting of the peremptory instruction, and that the case should be affirmed.
Willie Lee Walker, appellee and assignee of Lillie Walker, brought an action at law against the Mississippi Cooperative Cotton Association, appellant, for $ 593.35, which is alleged to be the value of 5, 405 pounds of lint cotton raised by Lillie Walker in the year 1935, and which it is alleged that C. C. Neely had wrongfully converted and sold to the appellant on or about the 11th day of October, 1935, without her knowledge and consent. An assignment in writing by Lillie Walker to Willie Lee Walker was made a part of the declaration. The appellant plead the general issue and gave notice of an estoppel by a special plea.
The court below gave a peremptory instruction directing the jury to find for the plaintiff 2, 715 pounds of cotton at the value of 10.95 cents per pound, deducting therefrom 50 per pound on 305 pounds, chargeable as a process tax, with 6% interest on the balance from October 11, 1935. This was the amount of cotton and value that the appellant, through counsel, admitted it had purchased from C. C. Neely and which was a part of the crop raised by Lillie Walker.
From this judgment, the Mississippi Cooperative Cotton Association appeals here.
In 1935, Lillie Walker, a Negress, rented a place south of Magee of C. C. Nelly, a white man, and agreed to pay him 1, 500 pounds of lint cotton as rental. When the cotton was gathered, at least two bales of this cotton was hauled to the gin by Lillie Walker, the tenant. C. C. Neely employed and directed one Fairchild, who operated a truck, to haul Lillie Walker's cotton to a gin at Magee. Fairchild testified that he hauled eight or ten bales of Lillie Walker's cotton. Lillie testified that she raised and ginned that season eleven or twelve bales of cotton. After the cotton was ginned, Fairchild hauled it to the place of Neely, under the landlord's direction. When the...
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