Tennent-Stribling Shoe Co. v. Roper

• Decision Date: 23 May 1899
• Docket Number: 743.
• Parties: TENNENT-STRIBLING SHOE CO. v. ROPER.
• Court: U.S. Court of Appeals — Fifth Circuit

94 F. 739

TENNENT-STRIBLING SHOE CO. v. ROPER.

No. 743.

United States Court of Appeals, Fifth Circuit.

May 23, 1899

Rice T Fant, for plaintiff in error.

James Stone and C. L. Siveley, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

SHELBY Circuit Judge.

1. This is a suit for $2,336.64, begun by attachment by the Tennent-Stribling Shoe Company, a corporation chartered under the laws of Missouri, against W. E. Roper, a citizen of Mississippi. Of this sum $920.90 is an account which the plaintiff in error holds against the defendant in error for goods sold to him. The remainder of the sum sued for is composed of accounts which were held against the defendant in error by citizens of states, or by corporations organized and chartered in states, of which neither the plaintiff in error nor the defendant in error was a citizen. The assignee of such claims, if in the aggregate they reach the jurisdictional amount, can sue on them in the United States courts. Chase v. Roller-Mills Co., 56 F. 625; Bowden v. Burnham, 8 C.C.A. 248, 59 F. 752; Bergman v. Inman, 91 Fed.

293. Of the total sum sued for, $644.96 is an account against the defendant in error and in favor of Wm. R. Moore & Co. The other several accounts were transferred, in writing, to the plaintiff in error for a valuable consideration on the 20TH of November, 1897. There is no controversy in the case, as shown in the evidence, except as to the transfer of the Wm R. Moore & Co. account. That account is transferred in this language:

'Transfer of the account of Wm. R. Moore & Company. Nov. 20, '97. For value received, we hereby sell, transfer, and assign unto Tennent-Stribling Shoe Company, of St. Louis, Mo., the within account versus W. E. Roper.

'Wm. R. Moore & Company.'

The attachment suit was brought on these several claims November 21, 1897. This was on Sunday, but the statutes of Mississippi permit the issuance and levy of attachments on Sunday. Ann. Code, Sec. 139. A declaration was duly filed in the case. Subsequently, on the 8th of December, 1897, the defendant in the suit, W. E. Roper moved the court to dismiss the case 'because this court has no jurisdiction; because, at the time of suing out this attachment, defendant was only due or owed to the plaintiff the sum of $920.90. ' The case was tried and disposed of on this motion. The bill of exceptions shows that the #defendant, to sustain said motion to dismiss, by his counsel offered in evidence the declaration in attachment, with bills of particulars attached thereto, and the transfers on the bills of particulars. ' We have already given the contents of the transfer of the Wm. R. Moore & Co. account, dated November 20, 1897. The defendant than offered the evidence of one witness, O. C. Armstrong. His examination related alone to the transfer of the Wm. R. Moore & Co. To understand the case, it is necessary to give the material parts of Mr. Armstrong's statement:

'Q. What time did you actually and in fact close the sale of your firm's accounts with plaintiffs? A. That was actually done, I would say, about 4 o'clock Sunday evening, November 21st. Q. Was any part of the purchase money paid before Monday, the 22d, or on Monday, the 22d? A. No, sir. Q. Had any memoranda in writing been signed before or on Monday, the 22d of November? A. Any memoranda in writing? Q. Yes, sir,-- evidencing the sale. A. No, sir. Q. I believe you stated in your direct examination that your firm owned the account after it was transferred to the plaintiff up until Monday, November 22d. Please explain what you mean when you state that your firm were the owners of the account until that day. A. When I made that statement, I forgot a telegram that passed Sunday evening, and I now remember that it did secure it Sunday evening. I was merely mistaken. Q. Then the sale was made on Sunday, was it not? A. Yes, sir. Q. When did you first deliver your account to the agent of the Tennent-Stribling Shoe Company, or the plaintiffs? A. I don't know, sir. It was done as soon as the clerks could make it out and put it in order. Q. That was some time after the 22d of November, was it not? A. Yes, sir.'

On cross-examination, Mr. Armstrong testified that on the evening of November 20th he went on the train with Mr. Fant, the attorney for the plaintiff in error, to Byhalia; that the trip was made to investigate W. E. Roper's affairs; that witness had with him an itemized statement of the account of Wm. R. Moore & Co. against W. E. Roper; that it was on that evening agreed that the plaintiff in error could buy the account for 50 cents on the dollar (witness referred to this agreement as an 'option'); that the option was finally closed on Sunday evening.

On this evidence, the court granted the motion, dismissed the cause, taxed the plaintiff with the costs, and ordered that certain moneys in court (the proceeds of the sale of part of the attached property) be paid to the defendant, W. E. Roper. The several assignments of error are directed to the action of the court in dismissing the case and entering the judgment described.

It is claimed by the defendant in error that the transfer of the W R. Moore & Co. account was made in violation of the Sunday laws, and that such transfer is therefore void. It is a misdemeanor in Mississippi to engage in work on Sunday. Ann. Code, Sec. 1291. Mr. Armstrong testifies that he and the plaintiff in error's attorney seems that the effect of the conversation was that the plaintiff in error was to have the account, if he wished to take it, at 50 cents on the dollar. This agreement is referred to by the witness as an 'option.' On Sunday there was evidently further communication on the subject, and on direct examination the witness says, in effect, that the account was not drawn off till some days later, probably about the 22d of November, and that the sale was not completed till 4 o'clock Sunday afternoon, November 21st. But, on cross-examination, the witness says that he had the account with him itemized on Saturday, the 20th, at the time of the conversation with plaintiff's attorney. The account offered in evidence is transferred on 'November 20th.' If this is not the true date of the written transfer, no date is given by the evidence. We are not unmindful of the fact that the witness holds to the proposition that the sale was not concluded, as he understood it, till Sunday afternoon; but the date of the written transfer would indicate that the telegraphic correspondence on Sunday was to ratify what was already done. If it be conceded that the transfer was made on Sunday, we cannot agree that the defendant in error can take advantage of it. The action is not brought on the contract of assignment. His contract was with Wm. R. Moore & Co. to pay the account. That account, with the other claims, is now the property of the plaintiff in error. It sues on the account. The assignment of it is the means by which it became the owner of it. If it was assigned to it on Sunday, if the assignor afterwards ratified the...