Walker Bros. & Co. v. Daggett

76 So. 569 | Miss. | 1917

Ethridge, J.,

delivered the opinion of the court.

Walker Bros. & Co., Limited, is a corporation under the laws of Louisiana engaged in the mercantile business in the city of New Orleans. On or about the 12th day of March, 1915, through its salesman, appellant sold a bill of goods to the appellee Daggett, the goods to be shipped at ■different times f. o. b. New Orleans; the order being verbally given and not signed in writing. A portion of the goods were delivered and accepted by Daggett, but the goods involved in this litigation, amounting to ninety-eight dollars and forty cents, were delivered to the Louisville & Nashville Railroad at New Orleans and sent to Pascagoula, Miss., consigned to the appellee, who refused to take the goods from the depot or pay for them. It appears from the correspondence that the appellee undertook to cancel that part of the order involved in this suit,, hut the appellee refused to cancel the order and shipped the goods as per contract. Defendant refusing to take the-goods or pay for them, suit was brought in a justice court and judgment rendered for the appellant. The case was appealed by the appellee to the circuit court, where a jury was waived and the cause submitted to the circuit judge on agreed statement of facts, and the circuit judge found in favor of the appellee, and an appeal was prosecuted here.

The appellee, having accepted and paid for a portion of the goods ordered, is bound by the contract given the salesman, even though not in writing. We think the delivery of the goods to the common carrier, the railroad company, was a delivery to the appellee. Planters’ Oil Mill Co. v. Falls, 29 So. 786.

It is insisted by the appellee that the appellant after receiving the notice that the appellee would not accept and pay for the goods that the goods should not have been shipped but should have been sold and the damages would be the difference in the sale price and the contract price,, and that the appellant needlessly increased his damages by shipping the goods after such effort on the part of the appellee to cancel the order. We think the appellant had the right to ship the goods according to his contract and sue for the contract price. This seems to be settled in this state. See American Cotton Co. v. Herring, 84 Miss. 693, 37 So. 117, where this court, in dealing with a similar proposition, laid down the following rules:

“The rule seems to be settled that there are three-methods of arriving at a proper measure for damages on a breach of contract of this kind: (1) The seller may complete the contract on his part and recover the contract price; (2) he may treat the contract as ended, retain the property as his own, and sue for the difference between the market value of the cotton and the contract price; (3) he may sell the property at public or private sale for the best price he can obtain, and sue for the difference between the price realized and the contract price.”

It is agreed in the agreed statement of facts that the goods were worth as much at the time they were tendered as at the time the order was taken. There being no dispute as to the value of the goods, it follows that the court below should have rendered judgment for the ninety-eight dollars and forty cents, together with the interest and damages. Accordingly judgment will be rendered here for the ninety-eight dollars and forty cents, with ten per cent, damages thereon, and six per cent, interest from, date of judgment in justice court.

Reversed, and judgment here..

On Motion to Remand.

The "appellee moves the court to set aside the order of' court entering judgment here, and to remand the cause,, because the appellant, pending the appeal in this case,, and after the judgment of the court below, had the goods involved in the suit and tendered to the appellee removed' from the warehouse of the common carrier and returned’ to New Orleans, and converted said goods to their sole-use and benefit without the knowledge or consent of appellee. In this attitude of the case, we think it proper to-sustain'the motion and reverse and remand the cause.

The motion is accordingly sustained_