Sussman, Wormser & Co. v. Sea Food Co. , 130 Miss. 632 ( 1922 )

Anderson, J.,

delivered the opinion of the court.

Appellants, Sussman Wormser & Company, sued appellee, a Mississippi corporation, in the circuit court of Harrison county for damages for breach of contract, and recovered a judgment for one thousand dollars, from which appellants prosecute this appeal.

Appellants were a wholesale grocery concern in San Francisco. Appellee was a Mississippi corporation, engaged in selling oysters and other sea food. The suit was for four thousand dollars. Appellants alleged in their declaration, a breach of contract by appellée, by the terms of which contract appellants purchased from appellee a carload of oysters to be delivered at a certain time and place, which appellee failed and refused to deliver. The price at which the oysters were purchased is set out in the declaration. The damages laid is the difference between the purchase price and the market price at the time and place of delivery. This is the second appearance of the case in this court. A statement of the case and the issues involved will be found in the case as reported on the former appeal. 127 Miss. 420, 90 So. 116.

Appellants made a motion in the court below to set aside the verdict and judgment of the court there'on so far as the assessment of damages was concerned.. By the motion therefore the appellant sought to separate the judgment and verdict into two parts, viz. the issue of liability and the issue of the amount of damages, and moved for a new trial alone on the question of damages. The motion was overruled by the court, and this action of the court is the basis of the only assignment of error.

It is true, as contended by appellants, that the damages awarded by the jury under the evidence are wholly inadequate and unauthorized. Taking the testimony most strongly for the appellee, it shows that appellant suffered something like three times the amount of damages awarded by the jury.

Is there no remedy for such a wrong except to try the entire case over again? Appellee contends there was no authority in the trial court to set aside a judgment in part and let it stand in part; that therefore the court had no right to grant a new trial on the issue of the amount of damages, and let the judgment stand on the issue of liability. Some courts have held in accordance Avith appellee’s contention, on the theory that such a judgment is an entirety, and therefore it cannot be separated into parts. However, this question is settled in favor of the position of appellants by Y. & M. V. R. Co. v. Scott, 108 Miss. 871, 67 So. 491, L. R. A. 1915E, 239, Ann. Cas. 1917E, 880. It Avas held in that case that a judgment for plaintiff on the issue of liability and assessing his damages is not an entirety and therefore indivisible, but that such a judgment is founded on tAvo separate and distinct issues, liability and the amount of recovery, and that the supreme court Avould grant a new trial on the issue of damages alone in a proper case, and refuse a new trial on the question of liability where the latter question had been legally tried. It is true that the neAV trial granted in that case was by the supreme court, but the supreme court has no more poAArer in that respect than the trial court. The supreme court can grant a neAV trial only in such cases as that it was the duty of' the loAver court to grant a new trial. The supreme court is exclusively a court of appeals, and as such its poAvers are confined to correcting errors committed in the trial courts. It would be an anomaly for this court to grant a new trial in a case in which the lower court had no such power.

Beversed and remanded for new trial on question of damages alone.

Reversed and remanded.