Lann & Carter, Hardware Co. v. Carberry

75 So. 377 | Miss. | 1917

Ethridge, J.,

delivered the opinion of the court.

The Lann & Carter Hardware Company is a corporation, and the defendant James Carberry was a planter. Suit was instituted in a justice of the peace court on an account for fertilizer sold by the appellant to Carberry. The account was made out and verified by the affidavit of Kirby Lann, manager of the Lann & Carter Hardware Company. There was judgment for the defendant in the justice court and on appeal to the circuit court. Pending the appeal, James Carberry, the defendant, died, and the action was revived against his administratrix. Plaintiff introduced Kirby Lann, manager and a stockholder of the Lann & Carter Hardware Company, who testifies that he had an agreement with Mr. Carberry to furnish the tenants of Carberry with the fertilizers involved in this suit, and that it was distinctly agreed and understood that the goods were to be charged to Carberry and not to the tenants, and were so charged on the books of the company, but that, when the fertilizers were delivered, the company took the notes of the several tenants for their respective amounts, as evidence of delivery. This testimony of Mr. Lann was objected to on the theory that he was incompetent to testify against the estate of the deceased, under section 1917 of the Code, in that he was the manager and a stockholder of the corporation plaintiff.. The plaintiff offered its bookkeeper, who testified that the charges were entered on the books at the time of the sale against the defendant, and that it was the custom of the company in their usual business to so charge fertilizers furnished to tenants, and that the books were correctly kept. This testimony was excluded upon the theory that the witness was the agent of the corporation and incompetent, under the section referred to. The company thereupon introduced its stenographer, to whom certain letters were dictated by Kirby Lann, the manager, to the defendant, and mailed by the witness to the defendant; and certain letters from the defendant to the company with reference to this transaction, which was also excluded by the trial court. The plaintiff introduced one or two of the tenants, who testified with reference to certain conversations between them and Mr. Carberry tending to prove that Mr. Car-"berry recognized liability for the debts to the comp'any. At the conclusion- of the evidence, the court granted a peremptory instruction to find for the defendant.

We think the court was in error on these rulings. Section 1917 of the Code of 1906 provides that a party is incompetent to testify to prove his claim against the estate of a decedent which accrued during "the lifetime of the decedent, or which had been transferred since his death. Mr. Lann was not the corporation. It is true he was a stockholder and the business manager of the corporation, and acted for it, but in this capacity he was only the agent of the corporation and not the corporation itself. The claim of the corporation was not his claim, though he might have had some incidental, collateral, or ultimate advantage In a recovery flowing from the testimony. It was decided in Mitchell v. Tishomingo Savings Institution, 56 Miss. 444, that the president of a corporation was a competent witness to testify against the -estate of the decedent under the statute. See, also, Wiggins Turpentine Co. v. Calamity Land Co., 109 Miss: 628, 68 So. 919; 12 Enc. Bv. pp. 787-794.

The judgment is therefore reversed, and the cause remanded.

Reversed and remanded.