76 Miss. 84 | Miss. | 1898
delivered the opinion of the court.
The damages for the breach of the warranty of the Lowry Hay & Grain Company arose out of contract, and were a valid set-off to any suit by the latter against appellant, and might have been recovered of it by him, in assumpsit, as money had and received to his use. He had the same rights defensively and affirmatively against the appellee, the assignee of the Lowry Hay & Grain Company, whether the bill of lading vested the title to the corn in appellee or not. Treating the appellee as owning only the draft, and holding the bill of lading as collateral security, appellant only connected himself with that draft by his contract of acceptance, made and payable in Natchez, and hence clearly within our anti-commercial statute. Appellant had a good cause of action against appellee. Wilkinson v. Searles, 70 Miss., 392; Millsaps v. Bank, 69 Miss., 918.
Judgment reversed and cause remanded.