Ormond v. Henderson

• Decision Date: 28 November 1898
• Court: Mississippi Supreme Court
• Parties: WILLIAM H. ORMOND v. WILLIAM HENDERSON

24 So. 170

77 Miss. 34

WILLIAM H. ORMOND v. WILLIAM HENDERSON

Supreme Court of Mississippi

November 28, 1898

March 1899

FROM the circuit court of Lauderdale county, HON. GREEN B HUDDLESTON, Judge.

Henderson the appellee, was the plaintiff in the court below; Ormond appellant, was defendant there. The facts are fully stated in the opinion of the court.

Judgement affirmed.

Watts & Everett, for appellant.

The declaration counts only upon a sale, and there is no proof that Henderson ever sold the fifteen barrels of sugar to Ormond. The variance is fatal, and demends a reversal. Chism v. Alcorn, 71 Miss. 506.

W. R. Woods, A. J. Russell, and W. T. Houston, for appellee.

Ormond, upon receipt of the bill of lading, should have accepted all or rejected all. If he rejected the shipment, Ormond should have notified Henderson. He did not reject, but accepted the whole; he dealt with the fifteen barrels, which were not carried to his store, as if they were his property. He is now estopped, and must pay for them.

Argued orally by A. J. Russell, for appellee.

OPINION

TERRAL, J.

Wm. Henderson, a merchant of New Orleans, La., sued Ormond, in the circuit court of Lauderdale county, for $ 230.98, a balance due of the purchase price of twenty-five barrels of granulated sugar, shipped to him November 18, 1895.

It appeared in evidence that Ormond, at Meridian, Miss. agreed to buy of Hester, a broker at that place, ten barrels of sugar, supposing that Hester had the sugar in hand. Hester having no sugar, and being unable to buy of Henderson on his own account, wired Henderson to ship Ormond twenty-five barrels of sugar, at the lowest market price. Henderson at once shipped the twenty-five barrels of sugar to Ormond, sent him an invoice of the purchase, and a bill of lading of the same. Ormond frankly states that when he got the invoice and bill of lading, he saw that Hester had no sugar, and that the twenty-five barrels of sugar sent by Henderson were intended as a sale from Henderson to him, but as he wanted only ten barrels, he received in his store only ten barrels, and turned over the bill of lading for the remaining fifteen barrels to Hester, to be disposed of by him, supposing Hester to be Henderson's agent. In such supposition Ormond was mistaken. When the debt fell due, Ormond, being drawn upon for the purchase price of the twenty-five barrels of sugar remitted Henderson for the ten barrels...