Richardson Corp. v. Standard Drug Co.

106 So. 95 | Miss. | 1925

^* Headnotes 1. Appeal and Error, 4 C.J., Section 2541; 2. Justices of the Peace, 35 C.J., Section 234. The appellant, Richardson Corporation, sued the appellee, Standard Drug Company, for one hundred twenty-six dollars on an open account for goods sold and delivered to the appellee. The appellee successfully defended against the claim in the lower court, by showing an offset in a greater sum than that sued for; this appeal is prosecuted from that judgment.

At the trial of the case, the appellee, Standard Drug Company, filed an offset, in which it claimed that it had suffered damages on account of a previous shipment of goods four years before that time, these goods being known as "Orange Rich," and that the "Orange Rich" was spoiled or defective, and that appellee paid two hundred seventy-three dollars and sixty cents on this shipment of goods, and claimed that it was due this amount, which it offered as a set-off against the claim of appellant for one hundred twenty-six dollars in this case.

To state it more specifically, the appellee, Standard Drug Company, was allowed to off-set the claim of the appellant by proving a set-off of unliquidated damages which accrued about five years before the appellant's demand herein was due, and the alleged damages had accrued by reason of a prior defective shipment of goods, which appellee had received, accepted, and voluntarily paid for more than four years before the offset was filed. Furthermore, the appellee failed to file its alleged offset in the lower court "on or before the return day of the summons," as required under the statute. Section 2740, Code of 1906 (section 2239, Hemingway's Code).

It will be observed that the appellant urges a reversal upon four different grounds, namely: First, that the off-set was barred by the statute of limitations, the demand having accrued more than four years before; second, the offset was not "filed on or before the return day of the summons," and therefore it could not be used in the trial under the statute referred to above; third, the alleged offset was one for unliquidated damages, and therefore cannot be offered against the account of appellant; and, fourth, that appellee accepted and voluntarily paid for the goods when shipped to it and made no complaint for four years thereafter, and thus is now estopped to complain.

It will be seen at a glance that the judgment of the lower court must be reversed, and we have only to pick out the surest ground to reverse on. When a case may be reversed for several reasons we select only one to base our action upon, because it is unnecessary to pass upon the others.

We shall, in this case, reverse the judgment of the lower court upon the ground that the offset offered by the appellee was not filed with the justice of the peace "on or before the return day of the summons, and before the trial of the case," and therefore could not be used on the trial. Section 2239, Hemingway's Code; Marx v. Trussell, 50 Miss. 499.

The other three reasons presented for reversal are such as to attract very serious attention, but we omit passing upon them, because the judgment will be reversed on the second ground named.

The judgment of the lower court is reversed, and judgment entered here for appellant.

Reversed, and judgment here for appellant.