Striplin Cotton Co. v. Miller

94 So. 226 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

The Striplin Cotton Company were cotton dealer^ at Corinth, Miss., and E. W. Miller was a farmer and J.' W. Mincy was a trustee in a deed of trust given by Miller to a firm of merchants. Miller was a renter from one Kitchens, and on the land so rented grew three bales of cotton. On October 12, 1920, Miller placed with £he Striplin Cotton Company two bales of cotton, and on November 3, a third bale, and procured an advancement of one hundred fifty dollars from the Striplin Cotton Company on said cotton, under an agreement that Miller could sell the cotton when he desired. Miller did not disclose to the Striplin Cotton Company that there were any liens against the cotton, but there was a landlord’s lien find also a deed of trust in favor of Kimmons & Walker in which Mincy was named as trustee. After this advancement was made, cotton declined in the market, and the Striplin Cotton Company demanded of Miller that he put up a margin to make the cotton safe security for the money advanced.. This Miller declined to do, and the Striplin Cotton Company told Trim they would sell the cotton unless he did so, which Miller defied them to do. This conversation occurred in January, 1921.

Nothing was done about the matter until some time in April, when Kitchens, the landlord, got busy about his rent. Finally Kitchens got the cotton receipts from Miller and carried them to- the Striplin Cotton Company and demanded settlement for the balance of his rent, amounting to eighty dollars. At the time of this demand the cotton was worth less than the amount advanced and the eighty dollars. The Striplin Cotton Company paid off the landlord’s claim, claiming that they bought the entire three bales of cotton and were delivered the receipts at said time. This was disputed by Kitchens, who claimed that he only sold his one-fourth interest in the three bales of cotton at the said time. An affidavit however was taken by the Striplin Cotton Company from Kitchens, reading as follows:

“Personally appeared before me, W. L. Madden, chancery clerk in and for said county and state, J. F. Kitchens, who being by me first duly sworn, says on oath that for and during the year of 1920 one E. W. Miller was a tenant on his place in said county and state, and that he was the landlord of the said E. W. Miller for said time and of said place, and that the said Miller raised on the leased premises which he had leased from affiant for the year 1920 three certain bales of cotton, being numbered as follows by their tag numbers, viz.: Nos. 2841, 89812,. and 88836, weighing respectively, 502, 565, and 563 pounds, the same being the three bales of cotton deposited with the Striplin Cotton Company by the said E. W. Miller, without my knowledge or consent, on the 10/23/20, and affiant further states that he was due as and for rent from the said E. W. Miller one-fourth of said three bales of cotton, and that he had a landlord’s lien for said rent; and he further states that the said Striplin Cotton Company has this day paid to him, the affiant, the sum of eighty dollars, to cover his one-fourth interest in and to said cotton, and hereby waives in favor of the said Striplin Cotton Company any and all claims which he may have against said cotton for either rent or supplies furnished said tenant.”

In the fall of 1921, cotton having advanced, Miller and the trustee in the deed of trust brought suit against Kitchens %nd the Striplin Cotton Company for the price at which cotton was then selling, alleging a conversion of the cotton by the Striplin Cotton Company and Kitchens, claiming a balance of ninety-four dollars and twenty-five cents against the Striplin Cotton Company. The judgment in the justice court was for the Striplin Cotton Company. An appeal was taken to the circuit court. The Striplin Cotton Company filed an offset claiming a balance due it by Miller of twenty-two dollars and eight cents. On appeal there was a peremptory instruction for the plaintiffs, the trial court refusing to submit the case to the jury on the conflict in the evidence, upon the theory that, the affidavit taken at the time of the transaction between Kitchens and the Striplin Cotton Company was the exclusive evidence of the transaction, and that the affidavit showed that Kitchens only sold a one-fourth interest in said cotton, and judgment was rendered accordingly.

We do not think the affidavit is a contract, or that it was intended as a memorandum in writing of a contract between the said parties. It is on its face a mere affidavit stating facts or purported facts by Kitchens. The evident purpose of taking this affidavit was to have Kitchens’ testimony or to have an affidavit from him supporting his claim to be used as a basis of a criminal proceeding or some other coercive proceeding against Miller, and certainly was not conclusive of what happened at the time, because it is not signed by Striplin Cotton Company, nor does it appear to contain any agreement whatever between such parties. In our opinion the cause should have been submitted on the conflict in the evidence on the proper instructions for the jury to determine the issue ^between the parties.

The judgment will therefore be reversed, and the cause remanded.

Reversed and remanded.