Rigby v. Stone

• Decision Date: 03 May 1943
• Docket Number: 35197.
• Citation: 13 So.2d 230,194 Miss. 775
• Court: Mississippi Supreme Court
• Parties: RIGBY v. STONE et al.

13 So.2d 230

194 Miss. 775

RIGBY v. STONE et al.

No. 35197.

Supreme Court of Mississippi

May 3, 1943

T N. Gore, of Marks, and W. E. Gore, of Jackson, for appellant.

J B. Boyles, of Batesville, J. H. Sumrall, of Jackson, and W D. Conn, Jr., Asst. Atty. Gen., for appellee.

SMITH Chief Justice.

This suggestion of error will be overruled as to all of these appellees except J. W. Whitten. Our former opinion herein, 11 So.2d 823, 825, will disclose that Stone, Chairman of the State Tax Commission, issued a warrant to Whitten, a sheriff for the collection of sales taxes under Section 9, Chapter 113, Laws of 1938, due by the appellant, pursuant to which Whitten levied on a stock of merchandise owned by the appellant and sold it therefor. In so doing, he did not comply with the requirement of Section 3038, Code of 1930, which governs the sale, to advertise the sale of the property for ten days but advertised it for only eight days, for which we held that he was liable to the appellant for the damages, if any, he sustained thereby, stating that the measure thereof is "the difference between the price it sold for and the price it would have sold for if proper notice had been given." There being no evidence disclosing the difference between these two prices, we affirmed the judgment denying the appellant a recovery against Whitten. This holding is supported by 57 C.J. 869, and by one, probably both, of the two cases there cited, though, as the text points out, there is authority to the contrary. This measure of damages being such an impractical one because of the difficulties that will always accompany its proof has caused us to re-examine it, after doing which we have arrived at the conclusion that it is not the proper measure thereof. In order to judicially determine the measure of damages for the commission of a tort, it is necessary to ascertain into what category of the law of torts the act complained of falls, and when that is done, no difficulty generally arises in arriving at the measure of damages for the commission of the act.

Whitten was privileged to sell this property under the writ issued to him therefor, but only on ten days' posted notice thereof, and when he sold it without giving this ten-day notice, the writ ceased to protect him, consequently he was without the right to then sell the property, ^[1] and by selling it became guilty of its conversion, ^[2] the measure of damages for which, in the absence of special circumstances not here in evidence, is the value of the property, market value if such it has, at the time and place of its conversion with interest thereon ^[3]. But it is said that the evidence as to the value of this stock of merchandise is not definite enough to enable the jury to place a value thereon. The appellant's right to nominal damages aside, the evidence discloses that Whitten sold this merchandise for $500, which sum the evidence also discloses was less than its true value, how much more than $500 the jury could have found its value to be we are not now called on to determine.

If...