J. R. Kirkland & Co. v. Carr , 35 Miss. 584 ( 1858 )

Smith, C. J.,

delivered the opinion of the court.

This was an action, brought by the defendant in error, in the Circuit Court of Rankin, to recover from the plaintiffs in error, the proceeds of thirty-five bales of cotton.

The material allegations of the complaint are in effect, that in January, 1852, the plaintiff delivered to the defendants, thirty-five bales of cotton, which, by agreement, the defendants were to ship, and have sold in the city of New Orleans, for and on account of the plaintiff. That the cotton was accordingly shipped, and consigned to Messrs. Lowe, Pattison & Co., of said city, by whom it was sold, on account of the defendants, to whom the amount of sales were sent, and to whose credit the proceeds were, by said Lowe, Pattison & Co., applied; and that the defendants have failed and refused to pay over to plaintiff the proceeds of said cotton.

The answer contained a general denial of the allegations of the complaint. And a verdict, the second rendered in the cause, for the plaintiff, was found by the jury. Whereupon, a motion for a new trial was made, which was overruled, and exceptions taken.

The questions raised by the exceptions to the judgment, and which we deem it material to notice, are: 1. Whether the court did not err in refusing to exclude the depositions of Lowe and Pattison, upon the ground that they were incompetent witnesses. 2. Whether there was not error in granting the first and fifth instructions for the plaintiff, and the refusal to give the sixth instruction requested by the defendants. And 3. Whether defendants’ motion for a new trial was not improperly overruled.

1. Lowe and Pattison, whose depositions were objected to, were members of the firm of Lowe, Pattison & Co., to whom the cotton was shipped by Kirkland & Co., and by whom it was sold, and the proceeds paid over or credited to them. Kirkland & Co., at the time of the transaction, were largely tbe debtors of Lowe, Pattison & Co. The disposition made, therefore, of the proceeds of the cotton, was in fact, a payment of so much of the debt, due by the former, to the latter. It is clear, that in the event of a recovery by the plaintiff, the defendants, Kirkland & Company, would have no resource upon Lowe, Pattison & Co.

The evidence goes very strongly, if not conclusively, to show that Lowe, Pattison & Co., were liable to the plaintiff. It is, hence, evident, that they had a direct interest in securing a recovery against the defendants. Upon a very plain principle of evidence, Lowe & Pattison were both incompetent witnesses, and their depositions should have been ruled out.

2. The first instruction given for the plaintiff, is in these words: “ If the jury believe from the testimony, that defendants agreed with Lowe, Pattison & Co., to ship them cotton, as well the cotton of planters as their own, and that Lowe, Pattison & Co., were to settle with defendants, and defendants were to settle with the planters, this contract was binding on defendants, and they could not avoid it, by a letter of instructions, without the consent of Lowe, Pattison & Co.”

This instruction was erroneous and improper, and might have misled the jury. It was improper, because the evidence in the cause, established no agreement between Kirkland & Co., and Lowe, Pattison & Co., of a permanent, or so binding a character, that neither party could put an end to it, by notice to the other. And it was erroneous, for the reason, that the agreement stated in the instruction, in legal effect, amounted to nothing more than an understanding of the method in which the transactions between them, in regard to the shipment and sales of cotton, should be conducted, not limited to any specified time, necessarily temporary in its nature, and which either party would have a right to put an end to.

The fifth instruction for plaintiff was also erroneous. It was not strictly warranted by the facts in proof before the jury, as it was not pretended that the defendants sold the cotton, or had actually received the proceeds; and it lays down an improper rule for the government of the jury.

If the defendants had received the proceeds of the cotton; or if they had been applied by Lowe, Pattison & Co., to the payment of the debt due by the former, with their consent; or if they were so applied without their consent, and the defendants afterwards assented to the appropriation, and received the benefit of the credit, it does not admit of doubt that they were liable to plaintiff. But, under the rule applied by the instruction, the jury were required to find for plaintiff, if it were proved that credit was given to the defendants, by Lowe, Pattison & Co., for the amount of the proceeds of the cotton, although that was done without the previous knowledge or consent of the defendants, and there was no evidence that they had afterwards approved of it. This was clearly erroneous.

3. The views, expressed upon the questions above considered, render it unnecessary for us to go into a minute examination of the evidence, for the purpose of ascertaining whether the verdict was correct or incorrect. It is sufficient to state, generally, that the verdict was fully justified upon the whole of the evidence submitted to the jury.

But the testimony of Lowe and Pattison, which, in our opinion was illegally admitted, constitutes a material part of that evidence. Without,their testimony, the verdict, at best, would be of questionable propriety. We are compelled, therefore, — although this is the second verdict rendered in the cause for the plaintiff, — to reverse the judgment, for the errors pointed out, and award a new trial.