Merchants Fertilizer & Phosphate Co. v. Standard Cotton Gin

L. A. Smith, Sr., J., delivered the opinion of the court. This case is an appeal from the Chancery Court of Quitman County. The complainant there, appellant here, *206 appealed from an adverse decree, and the defendants there, appellees here, attempted a cross-appeal. We cannot recognize appellees as cross-appellants for the reason that they did not comply with the rule for cross-appeals. A cross-appeal is perfected by filing a cross-assignment of errors, which we have held to be effectual in absence of bond for cross-appeal, by appellee. Rickets v. Rickets, 152. Miss. 792, 119 So. 194; Mississippi Fire Insurance Company v. Evans, et al., 153 Miss. 635, 120 So. 738; Ætna Life Ins. Company v. Thomas, 166 Miss. 53, 144 So. 50, 146 So. 134, overruling' suggestion of error; Stephenson v. Louisiana Oil Refining Company, 180 Miss. 410, 177 So. 912. It is not sufficient for an appellee merely to argue errors, claimed to his prejudice, in his reply brief, as was done here. So we consider the direct appeal only. • The case originated in the chancery court on a bill for discovery and an accounting, and reference to a master, where appellant sought the discovery of certain matters from appellees in aid of appellant’s case, and to have the master take and state an account between the parties, with a statement for the amount found to be due appellant, if any, on the account for which suit was filed.- Appellees filed a plea, that appellant was a foreign corporation and not having complied with the laws of Missisippi governing foreign corporations doing business in this state, was not entitled to sue in the courts hereof, and hence could not maintain this suit. The appellees claimed to have overpaid.appellant and made their answer a cross-bill. Their principal defense was based on an alleged special agreement between the parties wherein appellant was said to have agreed to allow appellees a special discount of $1 per ton on all chemicals and $1.25 per ton on all mixed goods bought from appellant in 1940, after appellees had bought at least one thousand tons during said season. The chancellor granted the discovery and referred all issues of fact to the master, including the issue of whether or not any such special tonnage agreement had in fact been made as alleged by appellees. But the plea as to the *207 non-resident appellant doing business in the state without having qualified under state law was not referred. In the final decree, this plea was denied by the trial court, as not having been sustained. The master was instructed to take and state an account as to the amount claimed from appellees for purchases, as set out in the original and amended bills, independently of the alleged special agreement for which appellees contended. The master was further instructed also to take and state an account between the parties as to the tonnage discounts claimed by appellees under said alleged special agreement, independently of the amount for which suit was brought. He was also instructed, as already stated, to determine whether or*not such special tonnage agreement had in fact been made. Certain further special instructions were included in the order of references, with directions to report his findings to the court. The master heard the evidence, which was voluminous and contradictory. He found that no special agreement had in fact been made for the alleged tonnage discount to appellees, although he calculated the amount of the claimed discounts thereunder, as instructed. He also took and stated an account with reference to the amount for which appellant sued, and reported his finding that appellant was entitled to recover the same with interest at six per cent per annum after thirty days from the respective dates of the invoices. The law of this state through the years has uniformly been that the report of a master in chancery has the effect of the verdict of a jury in the circuit court, and the chancellor could not vacate or set it aside, unless manifestly wrong as against the overwhelming weight of the evidence. Hines v. Imperial Naval Store Company, 101 Miss. 802, 58 So. 650; Daniel v. Klein, 149 Miss. 135, 115 So. 193; Sadler v. Glenn, 190 Miss. 112, 119, 199 So. 305; Goodyear Yellow Pine Company, et al., v. Anderson, 171 Miss. 530, 536, 157 So. 700. The chancellor correctly ruled that the burden of proof was on appellees to establish the affirmative defense of *208 the alleged, tonnage discount agreement. Mask v. Allen (Miss.), 17 So. 82; Austin Clothing Company v. Posey, et al., 105 Miss. 720, 63 So. 224, 64 So. 5, 1 A. L. R. 13, reversing decree on suggestion of error, 105 Miss. 720, 63 So. 224, 64 So. 5, 1 A. L. R. 13. The report of the master was based on involved statements, invoices, credits, adjustments, prices, and interest. He had most of the witnesses before him in person, saw and heard them testify. He was in a better position, therefore, than the chancellor or this Court to appraise the credibility and the weight of the testimony, as the chancellor, like ourselves, had to depend alone upon the mere letter of the written transcript. However, on the filing of the master’s report, which found the amount claimed by appellant to be correct and due from appellees, and that no tonnage agreement had, as a matter of fact, been made between the parties, as claimed by appellees, appellees excepted only to the latter finding. Thereupon, the chancellor, in his opinion in the record of the case, said that since only one controverted issue was then presented or remained, he would decide the issue himself, independently of the master’s report. The performance of the function of a master, whereby he reduces order out of confusion, simplicity from multiplicity, and certainty from uncertainty complies with the purpose for which he is appointed, and because his report is challenged by a party as to only one phase of his findings, such single challenge cannot retroactively overrule the original adjudication of reference, and authorize the chancellor to ignore the master’s findings, with their characteristics of the verdict of a jury. However, that is what was done in the trial court, and in so doing the chancellor committed reversible error, since he did not adjudge the master’s findings to be manifestly wrong, but merely ignored the report, although using the evidence therein. Griffith’s Miss. Chancery Practice, Section 605; Daniel v. Klein, 149 Miss. 135, 115 So. 193. Inasmuch as he did not hold the master’s findings to be manifestly wrong, and since they do not appear to us to be *209 manifestly wrong, the report should have been confirmed, and a decree should have been entered in the trial court for appellant in the amount for which demand was made in the original and amended bills, plus interest thereon, as calculated by the master, we are constrained to reverse the decree and render decree her accordingly, with interest on such amounts from the date of the filing of the master’s report, at the rate of six per cent, per annum. Reversed and decree here for appellant.