68 So. 769 | Miss. | 1915
delivered the opinion of the court.
Appellee instituted this suit in the court below to recover from appellant the price of certain metal alleged to have been shipped by it pursuant to an order therefor
“ Glacier Metal Company v. McDonnell Foundry & Machine Company. No. 2782.
‘ ‘ This cause coming on to be heard on the motion of the defendant to recover the proceeds of a certain sale of a half ton of Glacier metal that was shipped by the Glacier Metal Company to the McDonnell Foundry & Machine Company, refused by them, and sold by the Alabama & Vicksburg Railroad Company for transportation charges on the 11th day of April, A. D. 1914, for one hundred and twenty dollars and" ninety six cents, and it appearing to the court that said amount of said sale is still in the hands of the Alabama & Vicksburg Railroad Company, and that the Glacier Metal Company has recovered ■judgment of the McDonnell Foundry & Machine Company for the purchase price of said metal, and that the McDonnell Foundry & Machine Company is entitled to the proceeds of said sale after the payment of all charges due the Alabama & Vicksburg Railroad Company, it is therefore ordered that the McDonnell Foundry & Machine Company be and is hereby allowed to receive the proceeds of said sale, less the said charges, and that the Alabama & Vicksburg Railroad Company is authorized to pay the same to the McDonnell Foundry & Machine Company.”
The railroad company was not made a party to this litigation in any way, but nevertheless complied with the order and paid over to appellant upon demand therefor
Had appellant received and accepted the metal, it would have been liable, of course, to the appellee for the price thereof; and this would have been true, even though it had at first rejected the metal, but afferwards received and accepted it. The same result must follow from the acceptance by appellee from the railroad of the money received by it from the sale of the metal; for ap-. pellant’s right thereto depends upon the same facts which authorized it to receive the metal itself from the railroad company in the first instance. It follows, therefore, that a retrial of the cause in the court below will now necessarily result in the rendition of the same judgment as the one here in question.
It is not true that in the event the judgment of the court below should be reversed, and on a retrial of the cause judgment should be rendered in favor of appellant, that no harm would result to appellee because of the acceptance by appellant of this money from the railroad company, if it should now be permitted to pay it to the clerk of this court to await the final disposition of the cause, for the reason that appellee could not thereafter
The motion to dismiss will be sustained.
Sustamed.