Solomon v. City Compress Co.

• Citation: 10 So. 446,69 Miss. 319
• Court: Mississippi Supreme Court
• Decision Date: 11 January 1892
• Parties: J. S. SOLOMON v. CITY COMPRESS COMPANY

10 So. 446

69 Miss. 319

J. S. SOLOMON v. CITY COMPRESS COMPANY

Supreme Court of Mississippi

January 11, 1892

FROM the circuit court of Lauderdale county, HON. S. H. TERRAL Judge.

The opinion states the facts.

Judgment reversed, and the cause remanded for a new trial.

Hamm Witherspoon & Witherspoon, for appellant,

Filed a very lengthy brief, which made, among other points, the following:

It was error to allow plaintiff to amend by dismissing as to defendant Wolfe. In the original and first amended declaration, Solomon is charged with owning the entire rent as a partner of Wolfe, and as assignee of a half-interest in the unexpired term. In the second amended declaration he is charged with liability for the other half of the rent in his individual capacity, and not as a partner. This was not amending, but making a new case. Miller v. Northern Bank of Mississippi, 34 Miss. 412.

It was likewise error to give instructions which announced plaintiff'S right to recover if Solomon used and occupied the premises with plaintiff's permission. It should not have been submitted to the jury whether defendant was estopped to deny his liability for the rent. The issue tendered and accepted was solely whether the lease had been surrendered. The instructions were a clear departure from the case as made up by the parties themselves.

Fewell & Brahan, on the same side.

A. J McLaurin and Miller & Baskin, for appellee.

There was no error in allowing plaintiff, to amend by dismissing as to Wolfe. The latter had never been served with process, and had never appeared. In any event, it is permissible for a plaintiff to amend by dismissing as to one of several defendants. The case in 34 Miss. relied on by appellant, is not at all similar to this.

Under the facts, Solomon is estopped to deny the title of appellee to the leased property, or its right to the rent here sued for. If the case had proceeded against Wolfe, he could have successfully defended, on the ground that the plaintiff had accepted Solomon instead of him as tenant. 2 Bush. (Ky.), 282; 129 Ill. 318; 12 Barb. 262; 1 Sanford, 5; 19 Mo. 118; Phillips v. Sculthorpe, 4 Eng. Com. L., 50; 2 Mich. 101; 19 Pa. 444; 22 Conn. 443; 43 Eng. Com. L., 263; 48 Wis. 48; 30 Minn. 515; 12 Pick. 125; 1 Gray, 325 and 332.

The proven declarations and conduct of Solomon clearly estop him from denying his tenancy and insisting on any offset.

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

COOPER, J. Judge WOODS takes no part in the decision of this case.

OPINION

COOPER, J.

The appellee commenced this suit against appellant and one Fred Wolfe to recover certain rents reserved in a lease from L. A. Ragsdale to Wolfe, of date August 5, 1881, for a term of ten years.

The declaration consisted of a single count, by which it was averred that Ragsdale leased certain lands to Wolfe, by writing, for the term of ten years; that the plaintiff had become the assignee of the reversion, and of the rent due under the lease; and that Solomon was assignee, under Wolfe, of the undivided one-half interest in the term, whereby the defendants were liable to the plaintiff for the rent then due, for which judgment was demanded. Pleas were interposed by Solomon, the substance of which it is unnecessary to state, for, after interposing demurrers to them, the plaintiff abandoned its original declaration and filed an amended one. To the amended declaration, the defendant, Solomon, demurred, and the demurrer was sustained, and leave given plaintiff to file an amended declaration. Under this leave, the plaintiff filed a declaration containing three counts against Solomon alone. Each count sought to recover from this defendant rent accrued from August 15, 1888, to November 30, 1889, for the property known as the "City Compress," the same being the rent sought to he recovered by the original and and first amended declaration from Wolfe and Solomon.

By the first count, the plaintiff, as assignee of the reversion and rent, sought to charge the defendant as assignee of the term. The second count was for use and occupation of the premises by Solomon. The third count, after stating, in effect, the contents of the first, gave a somewhat detailed statement of the following circumstances relied upon as establishing an estoppel against the defendant to deny that he was the assignee of the term secured to Wolfe by the lease from Ragsdale.

In this count this history of the transactions between the plaintiff, or some of its members, and the defendant, Solomon, is given:

Some years after the execution of a lease from Ragsdale to Wolfe of the City Compress, Ragsdale died, devising said compress property, and a large quantity of other real estate, to his son, L. A. Ragsdale, Jr. Solomon, with six other persons, had entered into a contract with L. A. Ragsdale, Jr., for the purchase of the compress and other lands, agreeing to pay therefor the sum of two hundred and fifty-six thousand dollars, of which sum they had paid nine thousand dollars, and had bound themselves for the payment of the remainder. Solomon and his associates became alarmed by the magnitude of their engagement, and feared it would result disastrously because of their inability to meet the deferred payments as they matured, and were desirous of procuring other persons of financial ability to join them in the purchase. To accomplish this purpose, Solomon approached Robinson and Lyerly, and proposed that they, with Broach or Barber and Watkins, should join in the purchase of the whole property from Ragsdale, and, as an inducement to them to do so, he stated that the other purchasers would sell to these gentlemen, or to a corporation to be formed by them, the compress property, at and for the sum of fifty thousand dollars, and transfer to them the rents from August 15, 1888; and that he, Solomon, was the assignee of the term of Wolfe, and, as such, would pay the rents from said date without any set-off or recoupment against the same. In accordance with this understanding, and relying upon the representations and promises of Solomon, these gentlemen joined in the agreement for the purchase of the property from Ragsdale, and bound themselves with those who had originally purchased said property for the payment of the purchase-price; that afterwards they formed the plaintiff corporation, to which the compress property and the rights to the rents from August 15, 1888, were conveyed, and that Solomon had failed and refused to pay the rents from August 15, 1888, as he had agreed to do.

There was a demurrer to the declaration, which was overruled, and then pleas and demurrers thereto, some of which were...