91 So. 859 | Miss. | 1922
delivered the opinion of the court.
Weil Bros, brought suit against the appellant in the circuit court for one thousand, seven hundred and twenty-
The defendant pleaded the general issue and gave notice thereunder that upon the trial the defendant w'ould show that, incident to the sale of the cotton, it was agreed by the agent of the plaintiff and defendant, and without which no sale would have been made, the cotton in question amounting to two hundred and twenty-seven bales which
There was a sharp dispute between the plaintiff and the defendant as to the terms of the contract; the plaintiff’s witnesses proving the contract in accordance with their theory, and the defendant by its witnesses in accordance with its pleadings. There is no dispute in the evidence as to the weights at the Jackson, Tenn., compress, and there is no dispute in the evidence as to the grades of the cotton proven by the plaintiff. The case proceeded to trial from its disputed issue of fact as to what the contract was and upon the theory on the part of the defendant that the plaintiff could not recover because there was no contract in writing and the value of the cotton sold was much more than fifty-dollars.
It is next complained that instruction No. 1 for the plaintiff is error. This instruction reads as follows:
“The court instructs the jury for plaintiff that if you believe from the preponderance of the evidence in this case that Weil Bros, bought the cotton involved in this suit from the defendants on the contract prices, the contract grades, and the contract weights as set out in plaintiff’s declaration, and that said cotton failed to come up to said contract either in grades or weights, or both, then you will find for the plaintiffs and assess their damages the amount sited for.”
The error is alleged to consist of that part of the instruction which says that if ’“said cotton .failed to come up to the said contract either in grades or weights, or both, then you Avill find for the plaintiffs and assess their damages the amount sued for.” The instruction must be taken as a whole, and the first part of it required the jury to find from the preponderance of the evidence that the cotton was bought on the contract prices, the contract grades, and the contract weights as set out in plaintiff’s declaration. Inasmuch as there ivas no dispute in the evidence as to the weights and grades, the instruction would not be reversible error, though it was technically incorrect in its concluding parts to say if the cotton failed to come up to the contract either in grades or weights, or both, there was nothing to do save find a verdict for the amount sued for by the plaintiff. When the jury found under this instruction the verdict as testified to by the plaintiff and the plain
The judgment of the court below Avill therefore be affirmed.
Affirmed.