Dinsmore v. Hardison, 71 So. 567

71 So. 567 | Miss. | 1916

Sykes, J,,

delivered the opinion of the court.

This is an appeal from a decree overruling a demurrer to a bill filed in the chancery court of Noxubee •county, which bill, in substance, alleges the following facts:

The complainant is engaged in the business of buying ■cotton, and has an agent in the city of Macon, Miss., who buys cotton there in the open market for him; that his agent, during the year 1913, made a contract with the appellant here for the purchase of sixty bales of cotton which the appellant represented that he had already harvested from his fields; the sixty bales of •cotton were to he delivered during-the months of September, October, and November, 1913, on a price basis •of middling cotton at ten and one-half cents per pound, and that complainant was ,to pay for the cotton as the same.was delivered to him; that in pursuance of this contract the defendant executed and delivered to the complainant a written acknowledgment of the same as' follows:

“Macon, Miss., August 16, 1913.

“I have this day sold to J. M. Hardison sixty bales of cotton to be delivered during the months of September,. October and November, middling and above, at ten and one-half cents, less weighing, the cotton to be paid-for as delivered; any cotton below middling to be settled for at existing differences. [Signed] James A., Dinsmore. ”

Complainant alleges that the consideration of this, contract was that the defendant was thereby placed ih a position of knowing the exact price he was to get for his 'cotton, and was enabled to go ahead with his business contracts and agreements with the assurance of' the sum certain to be realized from the sale of this, cotton; that the contract price was a fair and adequate-consideration for said cotton. The bill then alleges that, it was never the purpose of the defendant to perform his contract and deliver the cotton, and that in executing the contract he perpetrated a fraud upon the complainant, for the above reason; that, relying upon his. contract with the defendant, the complainant .sold to his.patrons or .customers the sixty bales of cotton purchased from the defendant, and that after the month of November had passed complainant was compelled to-buy sixty bales of cotton in the open market at the market price in order to make up for -the failure of' the defendant to deliver the said cotton; that middling cotton at this time, in the open market, was worth the-sum of twelve and one-half cents per pound, and that complainant was therefore compelled to pay twelve dollars a bale more for this cotton than he had agreed to pay defendant, and for this reason he alleges that he has been damaged in the sum of seven hundred and twenty dollars. Complainant states that it is necessary for an accounting to be had between him and the defendant to ascertain the amount of damages he can. recover, and prays that the court appoint a commissioner to state an account of the amount of damage-which he has suffered. The demurrer to this bill alleges as grounds for same: First, that the chancery court has no jurisdiction; second, that the bill does not show .any ground for equitable relief; third, that the bill ■does not show facts constituting a fraud; fourth, that the bill shows on its face that it is a suit for damages for breach of contract, for which complainant has his remedy at law, and that the case should be transferred do the circuit court.

It is the contention of appellant in brief that this is •simply a suit for damages arising from the breach of a contract, and that the same should have been brought in the circuit court, and that the chancery court has no .jurisdiction thereof. The chancellor, however, assumed jurisdiction of this case, and section 147 of the Constitution of Mississippi, which reads as follows:

“No judgment or decree in any chancery or circuit ■court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake •as to whether the cause in which it was rendered was ■of equity or common-law jurisdiction; but if the supreme court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case, the supreme court may remand it to that court which, in its opinion, can best determine the ■controversy”

—settles this question against the appellant. Hancock v. Dodge, 85. Miss. 228, 37 So. 711.

Affirmed, with leave to appellant to answer the bill ■within sixty days after the mandate of this court Teaches the chancery court. °

Affirmed.