Richmond Paper Co. v. Bradley

• Decision Date: 28 May 1917
• Citation: 75 So. 381,115 Miss. 307
• Court: Mississippi Supreme Court
• Parties: RICHMOND PAPER CO. v. BRADLEY

75 So. 381

115 Miss. 307

RICHMOND PAPER CO. v. BRADLEY

Supreme Court of Mississippi

May 28, 1917

March 1917

Division B

APPEAL from the chancery court of Harrison county, HON. W. M. DENNY JR., Chancellor.

Suit by Thomas L. Bradley against the Richmond Paper Company. From a judgment for plaintiff, defendant appeals.

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

Reversed and remanded.

Russhing & Guice, for appellant.

White & Ford, for appellee.

OPINION

COOK, P. J.

The appellee is a traveling salesman and a resident of Biloxi, Miss. The appellant is a corporation domiciled at Richmond, Va., and is engaged in the business of selling paper, stationery, etc. Mr. Bradley filed a bill in the chancery court of Harrison county seeking to recover of and from the Richmond Paper Company the sum of two hundred and fifty dollars, claimed to be due him under his contract with said company as its traveling salesman. Without going into the details of the pleadings and the amended pleadings, suffice it to say that the paper company denied that it owed Mr. Bradley anything; that they had advanced him under the contract the sum of three hundred dollars and forty-four cents and Bradley had guaranteed that a bill sold by him to one Barker amounted to five hundred and fifty dollars and sixty-two cents; that this bill Barker had never paid; that Barker had been declared a bankrupt and no dividends had been paid.

The complainant, Mr. Bradley, demurred to the answer and cross-bill, upon the following grounds, viz.:

"(1) There is no equity in said amended cross-bill.

"(2) Because the alleged written guaranty referred to therein is not made a part of said amended cross-bill or referred to, and said allegation that complainant guaranteed the payment of the account is a mere conclusion.

"(3) Said amended cross-bill attempts to introduce a new cause of action different from that stated in the original bill and original cross-bill and seeks relief based on a transaction occurring and maturing after the filing of the original bill.

"(4) Said amended cross-bill shows on its face that alleged guaranty was made on June 24, 1914, that the Pensacolian Publishing Company was adjudicated a bankrupt on April 19, 1915, and the papers in the cause show the original bill was filed October 19, 1914, and the cause of action, if any, accrued to defendant only upon the bankruptcy of said Pensacolian Publishing Company.

"(5) For other causes to be shown on the hearing." The demurrer was sustained, and the cause was then tried upon the bill and the answer thereto, which was, in effect, the general issue.

So, the cause was tried upon the original bill and the evidence taken in support of same, and the affirmative relief sought by the answer and cross-bill was cut off. The evidence taken at the trial discloses that the defendant contended that their contract with Mr. Bradley was reduced to writing, in the form of a letter, and accepted by him. Mr. Bradley denied this, and the court evidently adopted Mr. Bradley's version of the contract, and entered a decree in his favor, from which this appeal is prosecuted.

We will not attempt to follow the meanderings of the trial, but will come directly to what we deem the crucial points involved in this appeal. The learned trial judge, in sustaining the demurrer to the affirmative defense, made in the answer and cross-bill, evidently thought...