Stewart-Gwynne Co., Inc. v. Sigman
| Decision Date | 24 November 1924 |
| Docket Number | 24374 |
| Citation | 101 So. 789,136 Miss. 811 |
| Court | Mississippi Supreme Court |
| Parties | STEWART-GWYNNE CO., Inc., v. SIGMAN. [*] |
1 FACTORS. Peremptory instruction for cotton factor in suit for balance on account, held proper.
Where a cotton factor advanced money on cotton, shipped it for sale and after sale furnished the customer proper accounts thereof, and the cotton was sold for a fair price and diligence was exercised in attempting to sell, and no objection was made to the manner in which the cotton was being handled, and there was no testimony that the cotton could have been sold for a higher price, then it was proper to give a peremptory, instruction in favor of the cotton factor suing for the balance of an account due him which account was admitted to be correct in so far as the advances to the customer, the amount for which the cotton sold, and other charges in the handling of it were concerned.
2. FACTORS. Conversation between prospective cotton shipper and factor Held but opinion, and not agreement altering customary relationship.
Where a prospective shipper of cotton to a cotton factor, had a conversation with one of its officers in which it was stated in effect how the factor would handle the cotton, that they would permit the customer to draw on them for a certain amount, would sell the cotton as soon as practicable and take their commission out of the sale, and that the business would show a profit, all of this is but a conversation expressing an opinion, and does not arise to the dignity of an agreement or contract guaranteeing the prospective customer against loss because of the decline in price of cotton, and does not alter or change the customary relationship of cotton factor and customer.
HON. THOS. E. PEGRAM, Judge.
APPEAL from circuit court of Marshall county, HON. THOS.E. PEGRAM, Judge.
Suit by the Stewart-Gwynne Company against Charles A. Sigman. From a judgment for defendant, plaintiff appeals. Reversed and rendered.
Judgment reversed.
L. A. Smith, for appellant.
Analysis of the plea of the appellee discloses that he first, claimed to be agent of Stewart-Gwynne Company, and guaranteed against loss by them; second, that when he shipped cotton to them that they improvidently refused to sell the cotton until after both appellant and appellee had sustained a loss. The reply of appellant is that there was no agency by appellee for them, but only the relationship of cotton factor and customer existed; that the loss was occasioned by a declining market; that they did their best for appellee; were free sellers; a prominent firm; and that the cotton was frequently on the tables for prospective buyers. The proof furthermore shows that often, even after sales had been made for appellee by appellant with the utmost difficulty that the buyers rejected bale after bale, and the cotton was of poor quality that Mr. Sigman shipped in to appellant.
It appears that the instant case is eminently a proper case for the court to upset the findings of fact by the jury below, because manifestly from the evidence of every witness in the case, including the evidence given by appellee himself, their verdict is erroneous and not any true or correct finding of the facts. Gillis v. Smith, 114 Miss. 665, 75 So. 451; Wilson v. Horne, 27 Miss. 477.
The letters of the appellee to appellant were of the utmost probative value, and their value to the jury was very early recognized by the jury, and feared by counsel for appellee, as is disclosed by the transcript. While the jury was deliberating they called the sheriff and asked him to get the letters Mr. Charles Sigman wrote the plaintiff, Stewart-Gwynne Company, in the case which were attached to the depositions and which were not taken out with the jury when they went to deliberate. All of such letters having been read to the jury in their presence, and in the presence of the court. Counsel for the defendant below, appellee here, Mr. Sigman, objected to their having the letters submitted to them, while counsel for appellant, Stewart-Gwynne Company, plaintiff below, asked that the request of the jury be granted, and the court declined to send the letters, as requested, to the jury and counsel for appellant excepted. This was error, and the jury should have been permitted to have these letters, as they requested. It was not only error, but highly prejudicial error, because if the jury had had those letters to consider carefully they would have brought in a verdict for appellant, and this counsel for appellee well apprehended when he refused to agree that it be done, and prevented the court from permitting it. Taylor v. Sorsby, Walker 97; Offit v. Vick, Walker 99.
Lester G. Fant, for appellee.
If a verdict is supported by evidence it will not be disturbed, although a finding for the opposite parties would have been more satisfactory to the court. Yazoo, etc., R. R. Co. v. Williams, 67 Miss. 18; Kansas R. R. Co. v. Cantrell, 70 Miss. 329; Moffit v. Robertson, 2 Miss. Dec. 704; Woodson v. Owens, 12 So. 207; Bernheim v. Dibbrell, 11 So. 795; Terry v. State, 12 So. 544; Holmes v. Simon, 71 Miss. 245; Dickson v. Parker, 3 How. 219, 134 Am. Dec. 78; Lee v. Guice, 13 S. & M. 656.
Where there is conflicting evidence it is the peculiar province of the jury to weigh it, and give credit to those facts and circumstances, which in their judgment are entitled to the greatest consideration, and it is not for courts in such cases to rejudge their judgments. Kelly v. Miller, 39 Miss. 17; Buckingham v. Walker, 48 Miss. 609; Miss. Central R. R. Co. v. Mason, 51 Miss. 234; Ala., etc., R. R. v. Deer, 87 Miss. 339; Mitchell v. McGee & Alford, 48 So. 234; Vicksburg Bank v. Moss, 63 Miss. 74; Greenville, etc., Co. v. Hyatt & Smith, 11 So. 471.
The appellant, Stewart-Gwynne Company of Memphis, Tenn., cotton factors, brought suit in the circuit court against Charles A. Sigman, appellee, for the sum of five thousand one hundred ninety-three dollars and fifty cents. Appellant claimed this amount due it by appellee during the cotton season of 1920, being a difference between the amounts advanced by appellant as cotton factors to appellee as a customer on cotton shipped appellant by appellee and representing the difference in the amount the cotton sold for plus warehouse, insurance, and commission charges. Attached to the declaration was an itemized statement of the account between appellant and appellee, sworn to by the secretary and treasurer of the appellant corporation. The appellee pleaded first the general issue and gave notice thereunder that he did not owe the account because the appellant procured him to ship cotton to it under an agreement that if he bought cotton and drew on appellant with a margin of a sufficient number of points appellant would sell the cotton so as to protect Sigman in the price paid by him for the cotton; and that under his agreement he was buying cotton for the appellant, and that it improvidently refused to sell this cotton until it had gone down to such an extent that the margin Sigman had in the cotton was wiped out. Plaintiff filed a written denial to the special matter set out under the general issue.
The testimony on behalf of the plaintiff in the court below (appellant here) showed that it was a corporation doing business as a cotton factor in Memphis, Tenn. That the appellee during the months of January and February, 1920 from Holly Springs shipped cotton to the appellant to be sold by it for appellee; that ordinarily when the...
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