52 So. 2d 35 | Miss. | 1951
In December, 1946, appellant, a corporation, was the publisher of a newspaper, and appellee, a partnership, operated a mercantile business, in the City of Meridian, Mississippi. In this opinion we will call appellant The Star and appellee Kay’s. Kay’s engaged The Star to run an advertisement in the paper of a clearance sale of its entire stock of fall and winter coats, suits and dresses at a reduction of one-fourth off: the regular prices. Through error the merchandise was advertised for sale at fifty per cent off. Negotiations were had between the parties as to the best method to be adopted under the circumstances and Kay’s elected to proceed with the sale at fifty per cent reduction. Kay’s then sued The Star for damages for the error and recovered a judg'
Appellant raises a number of questions on this appeal but, in our view, it is only necessary to discuss three of them. They are, first, whether the evidence of usages and customs, as offered by appellant and excluded by the lower court, was competent; second, whether plaintiff failed to prove the amount of actual damage in the manner required by applicable rules of law and evidence; third, whether the jury should have been permitted to find, if it did so find, that fur coats were included within the advertisement.
Now, in that situation defendant offered evidence of several newspaper publishers, as well as that of some merchants, of a number of mistakes which had been made in ads by newspapers, and that it was the custom of the newspapers to remedy that situation by a correction in the paper and by a letter to the advertiser acknowledging the error, and that, in the particular instances about which evidence was given, that the merchants accepted that adjustment of the errors. Most of these witnesses did not mention the streamer method of correction, although some of them did. As a part of this evidence defendant Star offered to introduce before the jury, and did introduce in the absence of the jury, the various advertisements about which this testimony was given. The trial court excluded this from the jury. Was this error?
It is pertinent to note in this connection that the verdict of the jury expressly confined the damage to the sales made on Monday, the first day of the sale. As to that damage, it is evident that a correction in Monday’s paper would have gotten into the hands of customers too late to appreciably reduce the damage resulting from sales that day.
Again, while customs and usages may be relevant to, and admissible upon, a particular fact in issue, yet the courts recognize the danger of such evi-
Evidence of custom and usages is much more restricted and limited in tort cases than in contract cases. However, within very limited and restricted scopes, such evidence is sometimes admitted in negligence cases in determining whether ordinary care has been exercised. In other words, the common usage of business may be regarded, in a proper case, as one test of negligence. But no question as to negligence entered into the trial of this ease. The defendant admitted it made the error and this Court on the appeal adjudicated there had been negligence. That question had been settled when the present case was tried. . Also, it will be noted that
And, finally, in any case, in order to render evidence of a custom admissible, it must appear that plaintiff had actual knowledge of the existence of the custom, or that it was so general that the parties must be presumed to have had knowledge thereof when they acted with reference thereto. 20 Am. Jur. 311, Section 333. It is not shown Kay’s had knowledge of such custom, nor that the manner of trying- to correct these mistakes, offered to be proved by The Star, was so general and prevalent as that Kay’s was chargeable with such notice.
The court made no error in excluding this testimony.
Appellant next says Kay’s did not prove its damage as the law requires. It is sufficient on this to say that plaintiff attached to its declaration, and it proved by evidence, a list of the articles sold each day during- the ten-day sale, together with the name of the purchaser and the price of the article. This was done by sales tickets, as suggested in the letter of December 18th from The Star to Kay’s. These tickets, or copies of them, were delivered to The Star on December 26th. In addition to this, the method used in the trial of this case to prove damage was the same method used on
Appellant next says the jury should not have been permitted to find, if it did so find, that fur coats were included within the merchandise advertised for sale. The property included, according" to the wording of the ad, was “Entire stock of fall and winter coats, suits and dresses”. Certainly on its face this wording’ would include fur coats just as much as wool coats or coats of any other particular material — at least, the jury had the right to so conclude, considered in connection with testimony that it was the intention to so include fur coats, and the fact that fur coats were actually sold at the sale. Indeed, that question was submitted to the jury by the defendant. It obtained an instruction telling the jurors that unless they believed from a preponderance of the evidence that the advertisement included fur coats, or if they were unable to determine whether the ad included fur coats, they could not return a verdict against The Star for any loss on fur coats. Defendant was granted another instruction informing the jurors that unless they believed from a preponderance of the testimony that the ad included fur coats and ‘ ‘ that the public would have reasonably understood that it did include fur coats”, or if they were unable to say from a preponderance of the testimony “whether such advertisement was so reasonably understood by the public to include fur coats ’ ’, they could not return a verdict against defendant for any fur coats. Again, as above stated, the jury expressly limited the damage to that arising out of the first day’s sales. It found the sales that day amounted to $2983.11, and then added ‘ ‘ less merchandise we believe not covered by the ad . $429.27”, finding the total amount of the discount to be $2553.84, charging defendant with one-half of the amount to wit: $1276.92. The bill of particulars shows that only one fur coat was sold the
As stated, other questions are raised, hut we deem it unnecessary to discuss them in detail. We have given them all painstaking consideration. The law of the case was established on the former appeal. The reasonableness of Kay’s conduct in electing to hold the sale was submitted to the jury. The jury simplified the issues by limiting the damage to the first day’s sales. The plaintiff obtained eleven instructions and the defendant twenty-four, covering all contentions of the parties and the legal principles involved. If there be slight inconsistency in any of them this is cured when all are considered together. We find no reversible error, if. error at all, in the case.
Affirmed.