W. W. Walley & Son v. L. N. Dantzler Co.

75 So. 433 | Miss. | 1917

Cook, P. J.,

delivered the opinion of the court.’

The bill of complaint in this case was filed by the Dantzler Lumber Company against W. W. Walley & Son, the appellants, on the 3d day of September, 1913, and prays for an accounting and for judgment against the appellee for the amount to be found due. Briefly summarized, the bill alleges that prior to January 26, 1905, and since that date, the complainants, and defendants were traders; that is, complainant during all of said period was engaged in the business of buying sawlogs and manufacturing same into lumber, and disposing of same in the market of the world. The bill of complaint alleges that defendants were during said period also traders; that is, they were cutting logs from their own lands and the lands of others and hauling them to the Pascagoula Biver and floating them to Moss Point, the domicile of complainants, and there selling them to complainants. The bill alleges, further, that the defendants applied to complainants for advances of money, which advancements were made by checks and by drafts drawn by complainants on banks payable to defendants and collected by them. An itemized statement is filed as an exhibit to the bill showing the dates and amounts of advancements and the dates and amounts of credit given for the market value of deliveries óf logs made by defendants. The bill also alleges that, when logs were delivered to complainants, they scaled them and credited defendants with the prevailing price.

An inspection of the exhibits discloses an' ordinary open account showing the date and amount of debits and the date and amount of credits. But it is alleged that complainants have learned that defendants were disputing the correctness of the account and, because of the lapse- of time, the system of business, and the loss of certain vouchers, the case involves mutual and complicated accounting.

Taking the simple statement of facts, and eliminating the deductions, it seems to us that neither a dealing between traders, or mutual and complicated accounting, is made out by the bill. The complainant made advances to loggers, who were engaged in cutting logs from their own lands and that of others and selling same to the defendants to pay advances of money made by complainants. Complainants kept -the books — a very simple job, consisting of the debit of advancements and the credit of payments.

However, it may be said that the chancellor assumed jurisdiction of a lawsuit, and, having done so, this court will not reverse his decree, unless it be shown that it was otherwise wrong. If the chancellor reached the right conclusion, we should'not reverse for the reason that the case made out by the bill should have been instituted in the law court.

This action is based upon an alleged balance due upon a mutual and open current account, where both parties are merchants or traders, and is controlled by section 3100, Code of 1906, which section provides that:

“The cause of action shall be deemed to have accrued at the time of the true date of the last item proved in such account. ’ ’

The demurrer involved the three years’ statute of limitation, and the last item claimed by the account is dated more than three years before the filing of this suit.

We think the chancellor erred in overruling the demurrer, and his decree is therefore reversed, and the bill dismissed.

Reversed and dismissed.

On Motion to Correct Decree."

Stevens, J. The opinion heretofore delivered in this cause holds that the chancellor erred in overruling the demurrer to the bill, and that his decree should be reversed, and the bill dismissed. Appellee presents a motion to correct the decree entered by this court dismissing the bill, and prays that the cause may be remanded, with leave to amend the bill generally. The motion is sustained, the cause remanded, with leave granted appellee to amend its bill generally, within thirty days after receipt of mandate by the clerk of the court below.