123 So. 287 | Miss. | 1929
On October 15, 1927, the Hatley Manufacturing Company, the appellant, filed its declaration in the circuit court of Bolivar county, asking to recover from C.R. Smith Company and Mrs. Mamie W. Smith the amount of an itemized open account, the total of which was nine hundred eighty-four dollars and fifty cents and interest. In due time both defendants appeared and pleaded the general issue. Mrs. Mamie W. Smith filed a notice, under the general issue, that she would undertake to prove that the goods sued for were sold to the C.R. Smith Company, and not to Mamie W. Smith; that she paid the C.R. Smith Company for said goods, and that they were resold to her by the said C.R. Smith Company. She filed a further notice that the C.R. Smith Company had been placed in the hands of a receiver before the filing of the suit, and that the effects of the corporation were, *851 at the time the suit was filed, in the custody of the chancery court of Bolivar county; that the Hatley Manufacturing Company was a party to said suit and had decreed this claim as owing to it by the C.R. Smith Company; that dividends amounting to three hundred forty-nine dollars and eighty-eight cents had been made on the claim by the receiver to the appellant under direction of the chancery court; that the appellant accepted said sums; and that there was never joint liability of said Mamie W. Smith and C.R. Smith Company to appellant. The C.R. Smith Company pleaded a misjoinder, and also set up a pending receivership.
When the case came on for trial at the November, 1928, term, it appears that the court permitted an amendment of the declaration by dismissing the suit as to C.R. Smith Company, and amending the declaration, so as to sue for six hundred eighty-eight dollars and two cents, and alleging that appellant was entitled to a judgment against Mrs. Mamie W. Smith for said amount. This was done by erasures and interlineations, although the final judgment of the court shows that the court permitted the declaration to be amended, and that a nonsuit was taken as to C.R. Smith Company. After all the proof was taken, the court below granted the appellee, Mrs. Mamie W. Smith, a peremptory instruction, and the Hatley Manufacturing Company prosecutes its appeal here, assigning the giving of the peremptory instruction as error.
Hatley Manufacturing Company, of Memphis, Tenn., dealt in awnings. C.R. Smith Company was a mercantile corporation doing business at Cleveland, Miss., C.R. Smith was president of the C.R. Smith Company and its active manager and agent. He was husband of the appellee, and both he and C.R. Smith Company acted as the agent of Mrs. Smith in the collection of rentals on her property, and in repair of same. Both Mrs. Smith and the C.R. Smith Company owned business houses in *852 the city of Cleveland. At the time of this transaction the C.R. Smith Company owed Mrs. Mamie W. Smith a large amount, part of which is evidenced by notes in a substantial sum, several thousand dollars is shown on the books of the C.R. Smith Company as being collections made by the C.R. Smith Company for Mrs. Mamie W. Smith.
On September 16, 1926, Hatley Manufacturing Company sold awnings to the amount of four hundred eighteen dollars to C.R. Smith Company, and on November 4, 1926, sold to the same company five hundred sixty-six dollars and fifty cents worth of awning. It appears from the evidence in the case that the C.R. Smith Company owned three store buildings and that Mrs. Mamie W. Smith owned five store buildings, and that the total sale price of the awnings placed upon the buildings owned by the appellee, Mrs. Smith, amounted to seven hundred thirty-three dollars and seventy cents, and the total value of the awnings placed upon the buildings owned by the C.R. Smith Company amounted to two hundred fifty dollars and eighty cents. The awnings were delivered and put up on the buildings by the appellant, invoice being rendered. The C.R. Smith Company charged the proper amount to Mrs. Mamie W. Smith and credited the Hatley Manufacturing Company; likewise it charged the proper amount to itself and entered a like credit to the Hatley Manufacturing Company. At the time of the sale of the awnings Hatley did not know that they were to be placed upon buildings owned by Mrs. Mamie W. Smith, or that C.R. Smith was the general agent in transacting business for Mrs. Mamie W. Smith.
On April 23, 1927, on petition of creditors filed in the chancery court, a receiver was appointed for the C.R. Smith Company, and the estate of the C.R. Smith Company was administered by the receiver under directions of the court. Claims presented and claims admitted to be due by the C.R. Smith Company were adjudicated to *853 be proper claims against the estate and entitled to share prorata therein. Among other claims was the claim of the Hatley Manufacturing Company for the amount of the invoice sued for herein. This adjudication was made final, except as to such creditors as might, on or before a date fixed in the decree, appear before the court and file their exceptions to the action of the court in allowing the claims, and process was ordered by publication for all the nonresident creditors. Subsequently the chancery court, by decree, decreed that all the creditors were before the court, and by due and legal process again made final the judgment allowing the claims of various creditors, and in particular the claim of Hatley Manufacturing Company, and directing that dividends be paid to them pro rata.
Before this adjudication the record showed that the C.R. Smith Company admitted that Hatley Manufacturing Company was its creditor and stated the proper amount. The Hatley Manufacturing Company did not file any claim in court, nor did it file any exception as to its being adjudicated a creditor of the C.R. Smith Company. It is shown in the evidence that some time in 1928 Mr. Hatley was making inquiries for his company relative to dividends, and then a letter written by the receiver, as agent, informed him for the first time that Mrs. Mamie W. Smith was an undisclosed principal, and suggested that he collect his money from Mrs. Mamie W. Smith.
On November 10, 1927, the receiver paid a twenty-five per cent. dividend to creditors, and paid to the Hatley Manufacturing Company two hundred forty-six dollars and twelve cents. On June 30, 1928, a dividend of about eleven per cent. was paid to Hatley Manufacturing Company, which amounted to one hundred three dollars and seventy-six cents, making a total of three hundred forty-nine dollars and eighty-eight cents paid to that company. The C.R. Smith Company having charged the awnings *854 to Mrs. Mamie W. Smith, the amount of her claim, as allowed by the chancery court in the receivership proceedings, was reduced to that extent.
We think the court below was not in error in granting the appellee, Mrs. Mamie W. Smith, a peremptory instruction in this case. In the state of this record, Mrs. Mamie W. Smith was an undisclosed principal, and the Hatley Manufacturing Company had a right to hold either the principal or the agent for the amount of his debt. However this was one debt and one contract, and could not be the debt of both, and the appellant having permitted the full amount of his claim to be adjudicated by a final decree in the chancery court to be a debt of the C.R. Smith Company, and then, having received the dividends paid by the receiver of the estate of the C.R. Smith Company before the trial of this case, he elected to hold the agent, and permitted the final judgment to be entered adjudicating him to be a creditor without objection, and received the fruits thereof, and continued to receive in excess of what he now says the C.R. Smith Company really owed him.
Appellant argues on this appeal that the receivership proceedings were not competent, because there was no proper publication of process for him as a creditor, and that therefore, the decree rendered in his favor was void, being a proceeding inrem and not having personally appeared in the court, and that he is not bound thereby. The chancery court is a court of general jurisdiction, having jurisdiction to administer insolvent estates and to appoint receivers, adjudicate who are the creditors and the amount due them, and generally to wind up the estate of an insolvent person or corporation. This receivership proceeding, and the decree rendered in a court having general jurisdiction, and the receiver having been finally discharged, the judgments and decrees of the court may not be attacked collaterally. SeeNatalbany Lumber Co. *855
v. Countiss,
"The attack here made on the judgment in the attachment issue is a collateral one, and in such an attack all jurisdictional facts necessary to support the judgment in the absence of evidence to the contrary `are conclusively presumed to have existed, whether there are recitals in the record to show them or not.' Cotton v. Harlan,
Further, when the receivership proceedings were offered in their entirety, the appellant made no objection then as now urged in this court, but satisfied himself with a general objection that the testimony was irrelevant and incompetent. It is quite clear that in this case, if the objection had been on the ground that the receivership proceedings were illegal and had not been properly pleaded the court would have permitted the proceedings to have been put in shape, or if it had *856
been on the ground that the process was defective that might have been obviated. At any rate, the general objection cannot avail to permit the attack upon its competency for a specific reason first raised in this court. The evidence was competent to show that the appellant had appeared in another court and prosecuted his case to a judgment and received the fruits of that judgment so long as it bore fruit. See Bessler Movable Stairway Co. v. Bank ofLeakesville,
The only other question presented is: Did the plaintiff elect, by permitting the chancery court to treat it as a creditor of C.R. Smith Company and receiving the dividends therefrom, to proceed against the agent, C.R. Smith Company? We answer the question affirmatively. Counsel for appellant cites the case ofSimmons Hardware Co. v. Todd,
In the case of Murphy v. William Nelson Hutchinson,
There was a proceeding to judgment in favor of the appellant against the agent, C.R. Smith Company, for the full amount of his claim. He collected three hundred forty-three dollars, to which he was not entitled, if he had a right to hold Mrs. Mamie W. Smith for the awnings which were upon her buildings. Appellant thereby, whether intentionally or not, played with the chancery court by collecting all the money he could from the estate of C.R. Smith Company, on the theory that the entire debt was claimed by him against C.R. Smith Company, and then, when no more dividends could be collected, dismissed his suit and proceeded against the undisclosed principal, rendered such, he contends, by his want of knowledge at the time the contract was made. This case is stronger than the case of Murphy v. Hutchinson, in that the judgment here rendered by the chancery court against the agent, C.R. Smith Company, was favorable to the appellant, and by receiving dividends thereon he took money which should have gone to all the other creditors of C.R. Smith Company. He was bound by his election; *858 he had opportunity to go into the chancery court and repudiate any claim against the agent; under a well-established rule he could have held either. When he accepted the dividends, he ratified the judgment, which he had already suffered to go in his favor.
The position that C.R. Smith Company owed the entire debt is entirely inconsistent with the theory that Mrs. Mamie W. Smith owed the entire debt, and the remedy availed of by him in going into the receivership court, or permitting the receivership court to render judgment for him, was an inconsistent remedy from that which he now seeks. He allowed the chancery court to render the decrees, and collected the dividends therefrom. He had a choice of two remedies; he is bound by his election. See 20 C.J. 20. Also see Warriner v. Fant,
The lower court so held.
Affirmed.